Legal Community: "Early Voting Violates Principles of Direct, Secret, and Equal Elections"... Civic Groups File Criminal Complaints Continuously

On the afternoon of the 5th, a confirmed patient is voting at a polling booth set up outdoors at the Sapa-dong Community Center in Seongsan-gu, Changwon-si, Gyeongnam. Next to them, an election assistant is standing holding a box to collect the ballots.
[Image source=Yonhap News]

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] Amid growing legal concerns that a series of incidents during the operation of temporary polling stations for early voting by COVID-19 confirmed patients and quarantined individuals violated constitutional election principles and the Public Official Election Act, criminal complaints against the National Election Commission (NEC) are drawing attention.

On the 7th, the civic group Action Alliance for Upholding the Rule of Law (Law Solidarity) filed a criminal complaint with the Supreme Prosecutors' Office against NEC Chairperson Roh Jeong-hee, Secretary-General Kim Se-hwan, and other NEC officials on charges including abuse of authority, neglect of duty, and violations of the Public Official Election Act.

Law Solidarity pointed out, “Preventing confirmed patients and self-quarantined individuals from directly placing their ballots into the ballot box and instead requiring them to submit ballots to a third-party election official clearly violates Article 157, Paragraph 4 of the Public Official Election Act, which states that ‘ballots must be marked and folded on the spot so that the marking is not visible to others, and then placed into the ballot box in front of election observers.’ Furthermore, transporting ballots in unsealed paper boxes, shopping bags, or garbage bags to the ballot box violates Article 167, Paragraph 1 of the Public Official Election Act, which guarantees the secrecy of voting.”

They added, “The fact that voters could not directly place their ballots into the ballot box is an unprecedented constitutional crisis in the history of the Republic, an unimaginable grave violation of democracy. Given that the National Assembly had already foreseen this situation and that it could have been prevented by clearly separating voting times for confirmed and non-confirmed voters during early voting as in the main election, the NEC’s complacent and incompetent response bears significant responsibility.”

The day before, the Committee for the Protection of the Livelihood of Ordinary Citizens also filed a complaint against Chairperson Roh for abuse of authority, coercion, neglect of duty, and violations of the Constitution and the Public Official Election Act.

Article 67 of the Constitution stipulates the principle of elections as “The President shall be elected by the people through universal, equal, direct, and secret elections.”

Legal circles have raised concerns that the incidents on the 5th may have violated the principles of direct, secret, and equal elections. The fact that voters did not directly place their ballots into the ballot box could be seen as a violation of the direct election principle; requiring voters to write their names on envelopes containing ballots or exposing marked ballots to others is a clear breach of the secret election principle; and discriminating between general voters and COVID-19 confirmed patients violates the principle of equal elections.

The Korean Bar Association criticized the NEC in a statement released the previous day, saying, “Democracy begins with the people’s secret and direct vote,” and “The reported incidents directly violate the principle of direct voting.”

The NEC maintains that the measures were unavoidable under Article 151, Paragraph 2 of the Election Act, which states that “In one election, two ballot boxes cannot be used simultaneously in each polling district.” They explained that since the movement paths of confirmed or quarantined individuals and non-confirmed voters could not overlap, and additional ballot boxes could not be installed under election law, the ballots had to be transported from temporary polling stations set up outside the polling place to the ballot box, which led to the incidents.

However, opposition parties argue that this explanation is inconsistent, citing the newly established Article 6-3 of the Election Act (Guarantee of Voting Rights for Infectious Disease Patients, etc.) and Article 67-2, Paragraph 3 of the newly established Public Official Election Management Rules (Installation and Equipment of Polling Stations), which mandate necessary measures such as setting up temporary polling stations for quarantined voters.

Yoo Sang-beom, head of the People Power Party’s Legal Support Team, said, “The Election Countermeasures Committee will determine whether to file complaints after accurately verifying the facts and reviewing the legal issues,” but added, “The NEC’s explanation makes no sense.”

He criticized, “If confirmed patients were prevented from placing ballots into the ballot box, sealed temporary ballot boxes could have been prepared and later transferred to the main ballot box without issue. Using paper boxes or shopping bags because two ballot boxes cannot be made is an overly formalistic legal interpretation to evade responsibility.”

However, some expressed skepticism about the possibility of criminal punishment for Chairperson Roh and other NEC officials over this matter.

Lawyer Baek Seong-moon of the Ariyul Law Firm said, “It appears clear that the incident violated constitutional election principles,” but added, “While it was clearly a case of poor management, it seems difficult to label everything illegal. Since there are no provisions for punishing negligence, violations of election principles and criminal punishment are separate issues.”

Baek noted, “During this early voting, general voters also voted at the same time as confirmed and quarantined individuals, which caused problems. Since voting times are strictly separated during the main election, the likelihood of a recurrence is low, but preparations are needed for situations where general voters arriving close to 6 p.m. cannot finish voting before their time overlaps with confirmed patients’ voting time.”

He further predicted, “Voters who received ballots during early voting but left without voting due to long waiting times will be unable to vote during the main election, which could become an issue later, especially if the vote margin between the first and second place candidates is narrow.”

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