Fifty Years On, Japan’s High Court Yet to Act on Vote Disparity

The Japanese Constitution stipulates that if a national emergency transpires while the more powerful House of Representatives is dissolved, the House of Councillors can convene and make decisions to deal with the crisis in the interim. That same upper house, however, currently exists in a state of unconstitutionality.

On November 26, Japan’s Supreme Court ruled that the 4.77:1 disparity in the value of votes cast in different districts of the July 2013 upper house election constituted a “marked case of inequality.” The high court, in a situation which can only be considered abnormal, has found elections for both the upper and lower house to be in a “state of unconstitutionality.”

A Lifelong Battle

The battle over malapportionment has been a long one. It began over five decades ago in 1962 when Koshiyama Yasushi first took legal action to determine the value of one vote.

After passing the bar exam, Koshiyama became a judicial apprentice at the Tokyo District Court. It was there that Koshiyama’s mentor Hattori Takaaki, future ninth chief justice of the Supreme Court, showed the young man an article from the US publication Newsweek. The piece told the story of the US Supreme Court’s move to set up a judicial review after being asked to address the issue of vote disparity.

Taking inspiration from the article, Koshiyama quickly took up the issue of malapportionment in Japan, filing a suit challenging the results of the 1962 upper house elections. At the time, population disparity meant that a vote by a resident of Tokyo was worth only one-fourth of one cast by a resident of Tottori Prefecture.

Following World War II, maximum vote disparity of electoral districts had been set at 1.51 times for the lower house, which then was based on a multiseat system, and 2.62 times for the upper house. Discrepancy continued to swell as economic growth heightened the exodus of people from rural areas to cities.

The Supreme Court made its first decision on the value of a vote in 1964—the same year as the Tokyo Olympics—saying unequivocally that it fell to the legislature to determine seat apportionment. Koshiyama, who passed away in 2009 at the age of 76, made it his life’s work as a lawyer to realize the principle of one person, one vote. Although he filed over 20 lawsuits during the course of his career, he never saw a final decision on the issue.

Establishing Legal Precedence

Progress toward reducing vote-value disparity over the last half century has moved along at a snail’s pace. It has received little more than lip service in the Diet, and decisions by Japan’s Supreme Court have only served to kick the can down the road. The situation amounts to nothing more than willful nonfeasance by the legislative and judicial branches of government.

Looking back, the legal aspects of vote inequality over the last 50 years can be divided loosely into four periods. After hearing the initial case, the Supreme Court circumvented a decision on the issue for more than a decade by broadly deferring to the legislature. The situation changed in 1976 after the court passed down its first unconstitutionality ruling, making it seem for a while that a legal solution would be reached. In the mid-1980s, however, a high court ruling set the accepted level of vote inequality at 3:1 for the lower house and 6:1 for the upper house, where it has stood for over a quarter century. Recently, the issue has started to move again with decision on several cases being passed down over the last five years.

Japan’s first landmark decision on the value of votes cast in different districts came in 1976 when the high court ruled the results of the 1972 lower house election, which had a disparity of 4.99:1, unconstitutional. Later, a 1983 decision found the 3.94:1 discrepancy of the 1980 House of Representatives election represented a state of unconstitutionality. This was followed by a 1985 ruling declaring the 4.40:1 disparity of the 1983 lower house elections unconstitutional.

The terms “state of unconstitutionality” and “unconstitutional” are determined according to the time and effort required by the Diet to address disparity. If there exists after an election a reasonable period of time for the legislature to amend vote inequality by adjusting the number of seats, then results are deemed to be in a state of unconstitutionality; an election is found to be unconstitutional when such a period is considered to have been exceeded.

There were many who criticized the effectiveness of high court decisions that declared election results unconstitutional while upholding results and preventing new elections from being held. It was the 1983 decision that established the “3:1 standard” as the de facto yardstick by deeming Diet reforms lowering disparity to 2.9:1 as constitutional.

I covered the high court as a legal reporter during this period and have interviewed several retired justices involved in the decision. Although they did not come out and state it directly, I was given the impression from our discussions that the high court at the time considered a single move to reduce malapportionment to be politically difficult and moved to provisionally set the benchmark at 3:1 with the intention of reducing it in steps in the future.

The 1985 decision included an opinion by then Chief Justice Terada Jirō, the father of current Chief Justice Terada Itsurō, as well as supporting opinions by the heads of the three petty courts warning that delaying action to rectify vote disparity opened the possibility for future elections to be declared invalid. The high court up to this period was seen to be actively encouraging the Diet to advance reform measures to address malapportionment.

The fervor of the court had apparently cooled considerably, however, when in 1988 it ruled the results of the 1986 combined elections, which had a disparity of 2.92:1 for the lower house and 5.58:1 for the upper house, as constitutional. The decision emboldened politicians, who began to speak openly about 3:1 and 6:1 as the accepted high-water marks for the two houses.

In the quarter century following the 1985 decision, the high court continued to hold up the constitutionality of election results. The only exceptions were the 1990 lower house and 1992 upper house elections, which were both found to be in a state of unconstitutionality having vote disparities of 3.18:1 and 6.59:1, respectively.

New Challenges to Election Results

Politicians in the past have taken action, such as rolling out a new electoral system for the House of Representatives during the 1996 elections that replaced multiseat districts with a combination of single-seat districts and proportional representation. These reform measures looked to hold maximum disparity below 2:1. But the introduction of the so called “one extra seat” system, which aimed to ease the effects on less populated regions from the sudden loss of seats by giving one seat to each of the 47 prefectures and then allotting the remaining seats according to population, pushed vote discrepancy in elections over the 2:1 target.

In the end, though, the earlier established ceilings of 3:1 and 6:1 for the respective houses protected both arms of the legislature from having to carry out anything more than the bare minimum of electoral reforms.

In truth, the Supreme Court set these so called “ceilings” as arbitrary standards. Many critics argued at the time that refusing to act on vote disparity was tantamount to discrimination against average citizens, while others contended that allowing vote discrepancy to remain was contrary to the founding democratic principle of majority rule. Facing these and other criticisms, the court had every capacity to address the issue head on. It just chose not to.

In recent years, various lawyer groups have begun to challenge the results of national elections by filing suits at high courts across the country in the hopes of forcing the Supreme Court to address the issue of malapportionment. One movement gaining popularity among voters is answering the national referendum on Supreme Court justices, which is conducted in tandem with national elections, by voting against retention of high court judges seen as reticent on the issue of vote disparity.

A possible result of these and other actions is that high courts, in an obvious shift away from the court of previous Chief Justice Takesaki Hironobu, have begun passing down rulings invalidating election results. In March 2011, the Supreme Court pointed specifically to what it called the “inequality” of the one extra vote system when ruling the 2009 lower house elections to be in a state of unconstitutionality. Then again in October 2012, the court in a similar “state of unconstitutionality” ruling concerning the 2010 House of Representatives election called for the enactment of radical measures to address disparities in districts.

While the ball has clearly landed in the Diet’s court, the response by legislators has been dull at best. The “plus zero, minus five” reform, so called as it reduced seats in five prefectures with low populations by one seat each without adding any seats in highly populated prefectures, took effect in this month’s lower house election, but still retains the basic tenets of the one seat system. Ironically, the head of the lower house electoral reform council had set up an independent survey group to draw up new election reform proposals, including those to address malapportionment, but the House of Representatives was dissolved while the group was still working on a plan.

When upper house elections were held in 2013, the legislative branch retained the same division of electoral districts, this time implementing a “plus four, minus four” reform to address vote disparity. In 2010–11, then upper house president Nishioka Takeo put forward a plan to allot seats according to nine large national electoral blocs, but neither the ruling party nor the opposition accepted it.

A provision added to Japan’s elections law requires fundamental reform measures to be decided prior to 2016 upper house elections, but progress by the house election committee has been slow. Waki Masashi, former committee head and previous secretary general of the Liberal Democratic Party's upper house caucus, laid out a proposal that was torpedoed by his own party and cost him his position. There has yet to be any action on a reform proposal, even as the deadline quickly approaches.

A Court Too In Tune with Politics

In view of this state of affairs, the most recent decision by the Supreme Court reflects an excessive amount of consideration in deciding the time required to dramatically reform the electoral system. In fact, the decision reads much like a long-winded apology for the Diet’s lack of progress. The opinions presented by the four justices that declared the election results unconstitutional, on the other hand, are far more concise and convincing.

Legislators must firmly come to terms with two consecutive elections having been found to be in a state of unconstitutionality. To use a sports analogy, you are only allowed two yellow cards in soccer before being sent off, while in baseball, three outs retire the side.

These could easily be applied to the Supreme Court. It took the court 16 months to reach its decision on the 2013 elections, which is entirely too long. What I hope to see from the high court next is a firm and expeditious ruling.

Prime Minister Abe Shinzō often speaks of “values diplomacy” and “the rule of law.” This is likely done to criticize and constrain such countries as China, where the Communist Party is above the law. But the persuasiveness of such talk wanes when set next to the dire situation existing here in Japan.