Ballot Paper Crisis... Judges’ Dual Roles Put Under Fire for Creating a “Judicial Sanctuary” at the Election Commission

Ballot Paper Crisis in the June 3 Local Elections
Sitting Judges Serving as Election Commission Chairs
Concerns Over "Structural Collusion" with the Judiciary
Legal Challenges to Election Results Almost Always Dismissed
Reform Bills Pe

Amid mounting criticism of the National Election Commission’s poor administration following the ballot paper shortage in Seoul during the June 3 local elections, voices within and outside the legal community are pointing to the “structural collusion” between the judiciary and the commission as the root of the commission’s administrative convenience. The criticism is that sitting judges concurrently serve as election commission chairs at various levels, effectively acting as judicial “shields.”

On June 5, legal professionals unanimously stated that, despite the ballot paper shortage during the June 3 local elections, it would be difficult for any legal challenge to result in an election being invalidated. According to Article 224 of the Public Official Election Act, courts only recognize nullification “when it is acknowledged that the result of the election was affected.” Of the 126 election and election-invalidation lawsuits filed immediately after the 21st general election in 2020, not a single case was accepted by the Supreme Court; all were dismissed or rejected. The “dual role structure,” in which judges concurrently serve as election commission chairs, has been identified as the primary cause of these outcomes.

The heads of the central and local election commissions are elected from among their members. Since the establishment of the commission in 1963, it has been customary for a Supreme Court Justice to serve as the central election commission chair, for the chief judge of a district court to head the metropolitan or provincial commission, and for a presiding judge to chair city or county commissions, all in a non-standing capacity. This was intended to ensure the neutrality of elections by borrowing the independence of the judiciary. However, this structure has instead turned the commission into an untouchable entity, free from checks and balances. Former Assemblyman Kim Woong told The Asia Business Daily, “When someone at the level of a court president becomes the election commission chair, it grants the commission unchecked power and neutralizes any means of oversight. Even when problems arise at the commission, courts are reluctant to acknowledge wrongdoing in an institution headed by a fellow judge.”

This dual role structure leads to controversies over fairness in legal interpretation within local politics. It is not uncommon for the fate of locally elected officials to be determined by the judgment of a district court chief judge or presiding judge serving as the local election commission chair. According to one political insider, “When the local election commission files a complaint, the prosecution indicts without much screening, and ultimately, a judge who is at the same table as the head of the commission presides over the trial. This abnormal structure keeps repeating itself. Among local government heads, there is even a sense of resignation that maintaining a good relationship with the district court chief judge is the most important political factor.”

Even the regulation in Article 225 of the Public Official Election Act, which stipulates that a verdict must be reached “within 180 days from the filing of a lawsuit,” is frequently disregarded. The judiciary arbitrarily interprets this clause as a non-binding provision, not a mandatory one, and thus not subject to penalties if ignored. The final dismissal of the election nullification lawsuit filed by former Assemblyman Min Kyungwook regarding the 21st National Assembly general election in 2020 did not come until July 2022.

Improvement bills are currently pending in the National Assembly. In 2024, Assemblywoman Kim Minjeon of the People Power Party proposed an amendment to the National Election Commission Act, which would replace “judges” with “individuals with extensive knowledge of election management and election crimes” as eligible election commission members. The bill also includes converting the roles of central and metropolitan/provincial commission chairs, which have been held by current Supreme Court justices and the like on a non-standing basis, into two-year, full-time positions.

There are also calls to convert the election commission into a “non-permanent body” that operates only during election seasons, and to exclude it from being an “independent organization” that is not subject to constitutional audits. An attorney who requested anonymity stated, “Conflicting interests among political circles have prevented the resolution of these issues. There is no provision in the Public Official Election Act that can address this control vacuum. To fill this legal gap, measures to make the election commission non-permanent are necessary.”

This content was produced with the assistance of AI translation services.