The Quest for Voting Equality in Japan

Japan’s “Sovereign” Diet Members

In a representative democracy, the people are sovereign, and they exercise the powers of the state (executive, legislative, and judicial) on the basis of their majority opinions through their representatives, the members of the national legislature.

The three pillars of representative democracy are (1) popular sovereignty, (2) proper elections, and (3) majority decisions by national legislators.

“Proper elections” are a system to achieve equivalence between majority decisions by the sovereign people and majority decisions by national legislators. This equivalence is made possible by an electoral system under which the population is the same in each electoral district—in other words, elections proportional to population.

In Japan, however, members of the National Diet are not chosen by election proportional to population, and so there is no guarantee that their majority decisions will correspond to the majority opinions of the people. Legislators chosen by a minority of the people enact laws and select the prime minister, who heads the executive branch. In today’s Japan, sovereign power resides not with the people but with the members of the Diet.

Disparities in Popular Representation

Let me offer examples of election proportional to population and election not proportional to population: In the US state of Pennsylvania, where there were 19 electoral districts for the House of Representatives, the largest population of any district was 646,372, and the smallest was 646,371. So the maximum deviation in population among the districts was 1.(*1) In Japan, by contrast, the number of eligible voters per member of the House of Councillors in the most recent election ranged from a high of 1,143,913 in Hokkaidō to a low of 240,462 in Tottori, for a deviation of 903,451.(*2)

In June of this year the Diet enacted a bill that reduced the number of single-member districts for the lower house from three to two in five prefectures. As a result of this revision, the largest district by population is Tokyo’s 16th, with 581,677 people, and the smallest is Tottori Prefecture’s 2nd, with 291,103, a difference of 290,574.(*3) The gap between this Japanese figure and the deviation of just 1 in Pennsylvania is staggering.

There is also a tremendous difference between Japan and Pennsylvania in the amount of time it took them to redistrict after the court issued its ruling. On April 8, 2002, a federal district court ruled that the 19-person deviation between the most and least populous districts in Pennsylvania was unconstitutional, and it ordered the state legislature to come up with revised legislation providing for districts in keeping with the Constitution within three weeks. Just nine days later, on April 17, the legislature enacted a revision under which the maximum divergence was reduced to 1.

In Japan, the Supreme Court issued a ruling in 1976 declaring that the disparity in the value of votes in the 1972 House of Representatives election violated the Constitution. But even after the latest five-seat reduction, the value of a single vote still varies from district to district by a ratio of up to 1.998 to 1.

Other countries are holding population-proportional elections; there is no reason Japan could not do the same.

“Circumstantial Rulings” to Avoid the Inexpedience of Nullifying Elections

As of April 2013, 17 high court rulings had been issued concerning the vote disparity in the December 2012 House of Representatives election. (1) Two of the rulings declared the election unconstitutional and invalid. (2) Thirteen ruled the election unconstitutional and illegal (what is also called a “circumstantial ruling”). (3) The remaining two ruled the elections to be in a “state of unconstitutionality.”

Under the two rulings that declared the elections invalid, the Diet members who were the object of the suits were supposed to lose their Diet seats. But in the 13 cases where the court applied the “circumstantial ruling” procedure, the courts only declared the elections illegal, without calling them invalid. This has meant that the Diet members in question did not lose their seats.

The legal thinking underlying application of the “circumstantial ruling” procedure is that, in consideration of various circumstances, the inexpedience that would result from nullifying the election should be avoided.

In 1985 the Supreme Court applied the circumstantial ruling procedure when it declared the 1983 lower house election unconstitutional. The court explained that it wished to avoid the “inexpedience” of leaving the districts in which the elections were nullified with zero representatives while Diet members from other districts revised the election law.

If, however, suits in all the electoral districts were to result in rulings of unconstitutionality, all of the victorious candidates would be disqualified, and it would no longer be possible to apply the circumstantial ruling procedure as before. In order to achieve this, I and a group of my fellow citizens will submit suits to the courts in all 47 prefectural constituencies of the House of Councillors (the upper house of the Diet) on the day following the upcoming July 21, 2013, election for that house; we will appeal to the courts to nullify the election.

Even if all 73 of the victorious candidates from the 47 prefectural constituencies were disqualified, the chamber would still have 169 members—96 elected by proportional representation (including 48 elected this time) and 73 whose seats are not up for election this year. This would be sufficient to constitute a quorum (which is 81, one-third of the chamber’s prescribed membership of 242). So no “inexpedience” for the legislative functioning of the upper house would result from a ruling that declared the election of these 73 members unconstitutional and invalid and disqualified them from taking their seats.

Requiring States to Justify Disparities

The difference between the results in the United States, where court rulings have produced population-proportional elections, and Japan, where the disparities persist, can be attributed to a single factor: the ruling by the US Supreme Court explicitly placing the burden of proof on state governments to justify any deviation in the population of districts, versus the lack of such a ruling by Japan’s Supreme Court.

Japan’s Supreme Court has ruled that (1) the Constitution of Japan requires that the value of votes must be equal, but this is not an absolute requirement and (2) the equal value of votes can be adjusted through the reasonable exercise of legislative discretion. But the court has not explicitly placed the burden of proof on the government with respect to justifying the rationality of such legislative discretion.

The US Supreme Court, by contrast, issued a decision in 1983 in which it declared that (1) the requirement for equality of vote values is not absolute, but that (2) state governments must provide justification for divergences from equality among districts.

In other words, the US and Japanese supreme courts both concur that the equality requirement is not absolute, but the Japanese court does not explicitly place the burden of proof on the government to justifying disparities in the value of votes, whereas the US court has declared state governments to bear this responsibility.

If the authorities charged with the burden of proof fail to justify the divergences, the court will rule against them. The imposition of this sort of responsibility is a stringent requirement. Assuming a court issued a ruling placing this sort of burden on the government and the government then failed to meet the requirement, the court could be expected to rule the latest election both unconstitutional and invalid.

The US Supreme Court ruled that states bear the burden of proof in justifying the rationality of divergences in the populations of electoral districts. In the Pennsylvania case mentioned above, voters filed a suit challenging the constitutionality of districting that left a population difference of 19, and the state government was unable to offer acceptable reasons even for this small difference. As a result, the court ruled that the state had failed to meet its responsibility and declared the districting unconstitutional.

In March this year, the Fukuoka High Court (Justice Nishi Kenji) and Tokyo High Court (Justice Nanba Kōichi) issued historical rulings explicitly declaring the national government responsible for justifying the rationality of vote-value disparities. These two rulings are the same as that of the US Supreme Court in placing the burden of proof on the government.

In the period ahead I predict that many high courts and then the Supreme Court will issue timely rulings declaring that the present electoral system does not provide the population-proportional representation required by the Constitution, and that the elections will therefore be deemed unconstitutional and invalid. These rulings will change Japan from a country where the people are not sovereign to one where they are.

(Originally written in Japanese on June 24, 2013. Title photograph: Tokyo voters casting their ballots in the House of Councillors election on July 21, 2013. Photo by AP/Aflo)