19. Braille-Type Election Campaign Bulletins Case

[26-1(B) KCCR 448, 2012Hun-Ma913, May 29, 2014]

In this case, the Constitutional Court held that the part related to the Presidential Election in Article 65 Section 4 of the Public Official Election Act, which allows candidates to prepare one type of election campaign bulletins in braille within the number of pages of book-type election campaign bulletins, does not infringe upon the complainant’s right to vote and right to equality.

Background of the Case

Complainant, with Class 1 visual impairment, filed this constitutional complaint, arguing that Article 65 Section 4 of Public Official Election Act, which prescribes the preparation of braille-type campaign bulletins for visually impaired electors as a voluntary measure and stipulates that such braille-type campaign bulletins shall be prepared within the number of pages of book-type election campaign bulletins, is in violation of the State’s duty to protect disabled people under Article 34 Section 4 of the Constitution.

Provisions at Issue

The subject matter of this case is whether the part related to the Presidential Election in Article 65 Section 4 of the Public Official Election Act (amended by Act No. 9974, January 25, 2010)(hereinafter, the Instant Provision) infringes on the complainant’s fundamental rights. The provision at issue in this case is as follows:

Public Official Election Act (amended by Act No. 9974, January 25, 2010)

Article 65 (Election Campaign Bulletins) (4) Any candidate may

prepare one type of election campaign bulletins (hereinafter referred to as “braille-type election campaign bulletins”) other than the election campaign bulletins referred to in Section 1 for visually impaired electors (referring to visually impaired persons who are registered pursuant to Article 32 of the Welfare of Disabled Persons Act; the same shall apply hereafter in this Article). In such cases, class one type election campaign bulletins in braille shall be prepared within the number of pages of book-type election campaign bulletins under Section 2.

Summary of the Decision

1. Infringement on the right to vote and right to equality

Individuals with visual impairment can get enough information on election through various mandatory broadcasts for election campaign. Particularly, considering the facts that election campaign via Internet with the use of technology for voice transmission is freely available without specific limitation; that it is possible to locate information in Internet through voice web browser; and screen reading technology has been rapidly developed and actively used, the campaign bulletin is merely one of the resources to be used for providing candidate information, and the information provided by the campaign bulletin cannot be regarded as the very essence that can decisively influence the voters’ decision. Also, it is expected that the mandatory preparation of election campaign bulletins in braille would inevitably bring about restriction on candidates’ freedom of election campaign, and given that considerable number of people with visual impairment or the blind are unable to read braille, it seems that making the preparation of election campaign bulletin mandatory can be an excessive restraint on the freedom of election campaign. Therefore, Although the Instant Provision prescribes the preparation of braille-type election campaign bulletins for visually impaired electors as a voluntary measure and stipulates that the election campaign bulletins in braille shall be prepared within the

number of pages of book-type election campaign bulletins, the legislative intention to form such an election system seems not so much unreasonable or unfair as to be in violation of the right to vote and the right to equality.

2. Violation of Article 34 Section 5 of the Constitution

Considering the contents of Article 34 of the Constitution and the interests to be protected by the provision, restriction on the right to vote is not subject to the protection guaranteed under Article 34 Section 5 of the Constitution that stipulates the State’s duty to financially support and economically protect unprivileged people, and therefore the Instant Provision does not violate Article 34 Section 5 of the Constitution.

Summary of Dissenting Opinion by Four Justices

The Public Official Election Act, aside from campaign bulletins in braille, offers various methods of non-visual election campaigns such as voice transmission via Internet, phone calls, television or radio advertisements, candidate’s career broadcasting, campaign speeches, candidate interviews or debates. But election campaigns through phone calls, campaign speeches, candidate interviews or debates need specific time, media or place to air. And for television or radio advertisements and candidate’s career broadcasting, only one or two minutes are allowed, which seem insufficient to convey proper information on candidates. Meanwhile, although non-visual election campaigns such as voice transmission via Internet can be repeatedly heard, important candidate information such as military service, tax delinquency records or criminal records can be intentionally omitted. With this in mind, campaign bulletins in braille can be regarded as the only or essential means to convey proper information on candidates in a comprehensive and systemic manner to blind or visually impaired voters who have limited access to other promotional materials for election campaign

without regard to time or place.

The Instant Provision, by leaving the preparation of campaign bulletins in braille up to the choice of candidate, allows candidates who prepare for book-type election campaign bulletins not to choose to make those in braille. Moreover, since the number of pages for campaign bulletin in braille should also be counted as being included in the number of pages for regular book type campaign bulletins, it results in discrepancy in contents between the campaign bulletins in braille and the regular campaign bulletins.

The President, as the head of the State and the administrative branch of the government, is strongly related to the realization of fundamental rights of the disabled, as he/she can exercise broad authority over general national policies including welfare for the disabled. Also, since the State bears all the responsibility for financing the preparation and mailing of campaign bulletins in braille, obligating the preparation of campaign bulletins in braille as mandatory does not seem to restrict candidates’ freedom of election campaign. Therefore, the Instant Provision infringes upon the right to vote and the right to equality of people with visual impairment like the complainant.