Case on Absentee Voting Hours

[24-1(A) KCCR 320, 2010Hun-Ma601, February 23, 2012]

A. Background of the Case

In this case, the Constitutional Court delivered a decision of nonconformity to the Constitution for the provision of the Public Official Election Act (hereinafter referred to as the “Provision on Absentee Voting Hours”) which provided that the starting time for absentee voting is 10 a.m., because it seriously restricted the exercise of the right to vote.

The complainant wanted to vote by absentee ballot for school work but could not do so because the absentee voting hours, 10:00 a.m. to 4:00 p.m., were too short. Thus, he filed this constitutional complainant against the absentee voting hours.

B. Summary of the Decision

The Constitutional Court ruled that the part “open at 10 a.m.” in the Provision on Absentee Voting Hours infringes on the complainant’s fundamental rights and therefore is not conformable to the Constitution, only provisionally applicable until June 30, 2013, for the following reasons.

The requirement that polling places close at 4:00 p.m. aims to improve the efficiency of ballot management and to reduce the management risk of ballot boxes by enabling the transfer and forwarding of absentee ballots on voting day, and does not infringe on the voters’ voting rights or rights to equality. However, even if the closing time for polling places does not constitute any infringement of the fundamental rights, it is insufficient to substantially guarantee the voting rights of absentee voters, who can visit the polling stations only after working hours. Thus, it is necessary for legislators to seek legislative reform to extend the absentee voting hours so that absentee voters who have difficulty voting during daytime due to their affairs at school or work can exercise their voting rights after working hours.

Meantime, the requirement that polling places open at 10:00 a.m., which is within working hours, infringes on the voters’ voting rights or rights to equality because, although designed to promote the efficiency of voting management and to reduce the administrative burden, it places a serious restriction on the fundamental rights of absentee voters who have to engage in affairs at school or

work during daytime, which virtually keeps them from exercising their right to vote.

C. Aftermath of the Case

Reflecting the intent of this decision, the Public Official Election Act, amended by Act No. 11485 on October 2, 2012, stipulated that “an advance polling station shall open at 6 a.m. and close at 4 p.m. every day during the advance voting period.” Thereafter, the Public Official Election Act, amended by Act No. 12393 on February 13, 2014, extended the closing time for voting to 6 p.m.

Meanwhile, the conventional absentee voting system had been designed to receive and take an absentee ballot at one’s address upon his or her application. However, the Public Official Election Act, amended by Act No. 11374 on February 29, 2012, newly introduced an advance polling system replacing the absentee voting system, under which voters are allowed to vote by simply presenting their identification cards at any advance polling station installed nationwide, without any separate application, based on the integrated electoral register of the Election Commissions.