The Invisible Constitution in Comparative Perspective

11.4.3.  Materialization of the Principle of Equality 

in Election in the Election Reapportionment Cases

In Korea, Article 67 Paragraph 1(in re presidential election) and Article 41 

Paragraph 1(in re election of the National Assembly) of the Constitution 

declare four principles of election: universality, equality, directness, and 

secrecy of ballot in election. The KCC have used these principles to review 

the constitutionality of election laws. Here, we will discuss the principle of 

equality as a host of an “invisible” constitutional principle.

The KCC’s basic understanding of equality in election is that the par-

liamentary electoral system should guarantee not only equal votes for each 

voter,

30

 but an equal value for each vote.

31

 The key element in this regard 

30 

For a judgment of the KCC invalidating an electoral scheme on the ground of the “one 

person, one vote” rule, see Constitutional Court Decision 2000Hun-Ma91, July 19, 2001, 13–2 

KCCR 77.

31 

For a judgment of the KCC invalidating an electoral scheme on the ground of the “one vote, 

one value” rule, see Constitutional Court Decision 95Hun-Ma224, December 27, 1995, 7–2 

KCCR 760.

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Jongcheol Kim

is to formulate the constitutionally justifiable population disparity among all 

election districts.

In 2001, the KCC held that the population disparity should meet a limit of 

50 percent deviation (in which case the maximum permissible ratio between 

the most populous district and the least would be 3:1), though in principle, a 

limit of 33

⅓ percent deviation would need to be achieved in the future.

32

 This 

temporary permissible range was tightened compared to the KCC’s previous 

decision requiring a limit of 60 percent deviation (the maximum permissible 

ratio would be 4:1).

However, in 2014, the KCC moved to further tighten the permissible range 

as it anticipated in 2001, that is, it declared that a limit of 33

⅓ percent devia-

tion must be accomplished until 2015.

33

In addition, since its first decision on this matter in 1995,

34

 the KCC held 

that the average population of all the constituencies, rather than the actual 

population of each constituency, should be used in deciding whether they can 

be said to abide by the equality principle in election alignment.

35

In fact, the issue of election reapportionment has been considered so 

important that once it has been regarded as out of the jurisdiction of judicial 

review on the ground that it might fall into the category of a “political ques-

tion.” As we all know, this story can be found only in past history,

36

 and in most 

constitutional democracies election reapportionment is required to abide by 

the constitutional guidelines including the principle of equality, otherwise the 

electoral system can be found to be invalid.

37

32 

Constitutional Court Decision 2000Hun-Ma92•240(consolidated), October 25, 2001, 13–2 

KCCR 502.

33 

Constitutional Court Decision 2012Hun-Ma92, October 30, 2014, 26–2(A) KCCR 668. On 

March 3, 2016, the National Assembly revised electoral district apportionment according to 

the judgment of the KCC.

34 

Constitutional Court Decision 95Hun-Ma224, December 27, 1995, 7–2 KCCR 760.

35 

However, as far as local election constituencies are concerned, the KCC applied a different 

permissible range of population. In 2007, the KCC ruled that considering the peculiarity of 

social circumstances, for example, unbalanced urbanization, a limit of 60 percent deviation is 

acceptable. See Constitutional Court Decision 2005Hun-Ma985, March 29, 2007, 19–1 KCCR 

287.

36 

It was the Supreme Court of the United States that broke the old standard of “political ques-

tion” in election arrangements and opened the way for judicial review on electoral laws. See