2011.03.23

2010 (Gyo-Tsu) 207

Minshu Vol. 65, No. 2

Judgment concerning the constitutionality of the provisions of Article 3 of the Act for Establishment of the Council of Demarcation of Constituencies for Members of the House of Representatives, which specify the demarcation criteria including the rule of reserving one seat per prefecture in relation to an election of members of the House of Representatives to be elected from single-seat constituencies, and the provisions of Article 13, paragraph (1) and Appended Table 1 of the Public Offices Election Act, which specify the demarcation of constituencies according to said criteria

Case to seek invalidation of election

Judgment of the Grand Bench, dismissed

Tokyo High Court, Judgment of February 24, 2010

1. Of the criteria for demarcation of constituencies for members of the House of Representatives to be elected from single-seat constituencies, provided by Article 3 of the Act for Establishment of the Council of Demarcation of Constituencies for Members of the House of Representatives, the part which pertains to the rule of reserving one seat per prefecture under paragraph (2) of said Article had become contrary to the constitutional requirement of equality in the value of votes by the time of the general election held on August 30, 2009, and the demarcation of constituencies provided by Article 13, paragraph (1) and Appended Table 1 of the Public Offices Election Act, as revised according to said criteria in 2002, had also become contrary to the constitutional requirement of equality in the value of votes by that time; yet, it cannot be said that no correction had been made to either of them within a reasonable period of time as required by the Constitution, and in conclusion, the relevant provisions cannot be found to be in violation of Article 14, paragraph (1) or other provisions of the Constitution.

2. The provisions of the Public Offices Election Act, which permit a political party submitting candidates in an election of members of the House of Representatives to be elected from single-seat constituencies to broadcast its political opinions and carry out other election campaigns, cannot be found to be in violation of Article 14, paragraph (1) or other provisions of the Constitution.

(There are concurring opinions, an opinion, and dissenting opinions concerning 1, and concurring opinions and dissenting opinions concerning 2.)

(Concerning 1 and 2) Article 14, paragraph (1), Article 15, paragraphs (1) and (3), Article 43, paragraph (1), and Article 44 of the Constitution; (Concerning 1) Article 13, paragraph (1) of the Public Offices Election Act, Article 3 of the Act for Establishment of the Council of Demarcation of Constituencies for Members of the House of Representatives; (Concerning 2) Article 131, paragraph (1), Article 141, paragraphs (1), (2), and (6), Article 141-2, paragraph (1), Article 142, paragraphs (1), (2), and (8), Article 143, paragraphs (1) and (3), Article 144, paragraphs (1) and (4), Article 149, paragraph (1), Article 150, paragraphs (1) and (4), Article 151-5, Article 161, paragraph (1), and Article 161-2 of the Public Offices Election Act

Article 14, paragraph (1) of the Constitution
All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.

Article 15, paragraphs (1) and (3) of the Constitution
(1) The people have the inalienable right to choose their public officials and to dismiss them.
(3) Universal adult suffrage is guaranteed with regard to the election of public officials.

Article 43, paragraph (1) of the Constitution
Both Houses shall consist of elected members, representative of all the people.

Article 44 of the Constitution
The qualifications of members of both Houses and their electors shall be fixed by law. However, there shall be no discrimination because of race, creed, sex, social status, family origin, education, property or income.

Article 13, paragraph (1) of the Public Offices Election Act
(1) Constituencies for members of the House of Representatives (to be elected from single-seat constituencies) shall be prescribed in Appended Table I, and one member shall be elected from each constituency.

Article 131, paragraph (1) of the Public Offices Election Act
(1) The number of election campaign offices to be established by each of the persons listed in the items of paragraph (1) of the preceding Article may not exceed the number set respectively for the following categories; provided, however, that in districts with poor accessibility or other problems, up to three election campaign offices set forth in item (i) may be established, and up to five election campaign offices set forth in item (iv) may be established, respectively, as provided by Cabinet Order:
(i) an election campaign office in an election of members of the House of Representatives (to be elected from single-seat constituencies): if it is established by a candidate or a person submitting a recommendation of a candidate, one office per candidate, or if it is established by a political party submitting candidates, one office per constituency pertaining to the candidate submitted by such political party submitting candidates;
(ii) an election campaign office in an election of members of the House of Representatives (to be elected by proportional representation) to be established by a political party or group submitting a candidate list for the House of Representatives: one office per prefecture within the areas of the constituencies pertaining to the list submitted by such political party or group;
(iii) an election campaign office in an election of members of the House of Councillors (to be elected by proportional representation): if it is established by a political party or group submitting a candidate list for the House of Councillors, one office per prefecture, or if it is established by a person on the list who is a candidate for public office, one office per such person on the list;
(iv) an election campaign office in an election of members of the House of Councillors (to be elected from constituencies) or of a prefectural governor: one office per such candidate for public office; and
(v) an election campaign office in an election of assembly members of a local public entity or of a municipal mayor: one office per such candidate for public office.

Article 141, paragraphs (1), (2), and (6) of the Public Offices Election Act
(1) In the elections listed in the following items, a motor vehicle (meaning the motor vehicle prescribed in Article 2, paragraph (1), item (ix) of the Road Traffic Act (Act No. 105 of 1960); the same shall apply hereinafter) or a vessel and a loudspeaker set (including a portable one; the same shall apply hereinafter) to be used mainly for an election campaign may not be used except as specified in the respective items per candidate for public office; provided, however, that this shall not preclude the use of another loudspeaker set at a hall where and while an individual candidate's speech meeting (or speech) is being held:
(i) an election of members of the House of Representatives (to be elected from single-seat constituencies), members of the House of Councillors (to be elected from constituencies), or assembly members or the head of a local public entity: one motor vehicle (excluding one whose structure is designed mainly for the purpose of advertising; the same shall apply in the following item) or one vessel, and one loudspeaker set; or
(ii) an election of members of the House of Councillors (to be elected by proportional representation): two motor vehicles or two vessels (when using both, the total number should be two), and two loudspeaker sets.
(2) Notwithstanding the provisions of the preceding paragraph, in an election of members of the House of Representatives (to be elected from single-seat constituencies), a political party submitting candidates may use one motor vehicle or one vessel and one loudspeaker set per prefecture that comprises the constituency(s) pertaining to the submitted candidate(s), or if the number of candidates submitted by the political party submitting candidates in the relevant prefecture (meaning candidates submitted by the political party submitting candidates in the constituencies within the area of the relevant prefecture; the same shall apply hereinafter) exceeds three, the political party submitting candidates may use one additional motor vehicle or one additional vessel and one additional loudspeaker set for every ten additional candidates, mainly for an election campaign; provided, however, that this shall not preclude the use of another loudspeaker set at a hall where and while a political party's speech meeting (or speech) is being held.
(6) The motor vehicle set forth in paragraph (1) shall be limited to a motor vehicle for passenger use as specified by Cabinet Order when it is used in an election other than an election of assembly members or the head of a town or village, or to a motor vehicle for passenger use as specified by Cabinet Order or a small truck (meaning a truck falling within the category of small motor vehicle as specified under the provisions of Article 3 of the Road Transport Vehicle Act (Act No. 185 of 1951)) when it is used in an election of assembly members or the head of a town or village.

Article 141-2, paragraph (1) of the Public Offices Election Act
(1) The number of persons on board a motor vehicle(s) or vessel(s) to be used for an election campaign pursuant to the provisions of paragraph (1) of the preceding Article may not exceed four per motor vehicle or vessel, apart from the candidate for public office (excluding those other than a candidate in an election of members of the House of Representatives to be elected by proportional representation who is also a candidate in an election of members of the House of Representatives to be elected from single-seat constituencies that is held concurrently with the former election; the same shall apply in the following paragraph), the driver (one driver per motor vehicle; the same shall apply in said paragraph) and the crew.

Article 142, paragraphs (1), (2), and (8) of the Public Offices Election Act
(1) In an election other than an election of members of the House of Representatives (to be elected by proportional representation), documents and pictures used for an election campaign may not be distributed, other than the ordinary postcards as prescribed in the following items and the flyers as prescribed in items (i) to (iii) and (v) to (vii). In this case, flyers may not be scattered around:
(i) in an election of members of the House of Representatives (to be elected from single-seat constituencies): per candidate, 35,000 ordinary postcards, and 70,000 fliers of not more than two kinds submitted to the election management committee that manages affairs relating to the election;
(i)-2 in an election of members of the House of Councillors (to be elected by proportional representation): per person on the candidate list for the House of Councillors who is a candidate for public office, 150,000 ordinary postcards, and 250,000 flyers of not more than two kinds submitted to the Central Election Management Council;
(ii) in an election of members of the House of Councillors (to be elected from constituencies): per candidate, if there is only one constituency for members of the House of Representatives (to be elected from single-seat constituencies) in the area of the relevant prefecture, 35,000 ordinary postcards, and 100,000 flyers of not more than two kinds submitted to the election management committee that manages affairs relating to the election, or if there is more than one constituency for members of the House of Representatives (to be elected from single-seat constituencies) in the area of the relevant prefecture, 35,000 ordinary postcards plus 2,500 for every one additional constituency, and 100,000 flyers plus 15,000 for every one additional constituency of not more than two kinds submitted to the election management committee that manages affairs relating to the election (up to 300,000 if the total of flyers exceeds 300,000);
(iii) in an election of a prefectural governor: per candidate, if there is only one constituency for members of the House of Representatives (to be elected from single-seat constituencies) in the area of the relevant prefecture, 35,000 ordinary postcards, and 100,000 flyers of not more than two kinds submitted to the election management committee that manages affairs relating to the election, or if there is more than one constituency for members of the House of Representatives (to be elected from single-seat constituencies) in the area of the relevant prefecture, 35,000 ordinary postcards plus 2,500 for every one additional constituency, and 100,000 flyers plus 15,000 for every one additional constituency of not more than two kinds submitted to the election management committee that manages affairs relating to the election (up to 300,000 if the total of flyers exceeds 300,000);
(iv) in an election of assembly members of a prefecture: per candidate, 8,000 ordinary postcards;
(v) in an election in a designated city: if it is an election of the head, per candidate, 35,000 ordinary postcards, and 70,000 flyers of not more than two kinds submitted to the election management committee that manages affairs relating to the election, and if it is an election of assembly members, per candidate, 4,000 ordinary postcards;
(vi) in an election in a city other than a designated city: if it is an election of the head, per candidate, 8,000 ordinary postcards, and 16,000 flyers of not more than two kinds submitted to the election management committee that manages affairs relating to the election, and if it is an election of assembly members, per candidate, 2,000 ordinary postcards; and
(vii) in an election in a town or village: if it is an election of the head, per candidate, 2,500 ordinary postcards, and 5,000 flyers of not more than two kinds submitted to the election management committee that manages affairs relating to the election, and if it is an election of assembly members, per candidate, 800 ordinary postcards.
(2) Notwithstanding the provisions of the preceding paragraph, in an election of members of the House of Representatives (to be elected from single-seat constituencies), a political party submitting candidates may distribute (not scatter around), for an election campaign, per prefecture that comprises the constituency(s) pertaining to the submitted candidate(s), ordinary postcards up to the number calculated by multiplying 20,000 by the number of candidates submitted by the political party submitting candidates in the relevant prefecture, and flyers up to the number calculated by multiplying 40,000 by the number of candidates submitted by the political party submitting candidates in the relevant prefecture; provided, however, that it may only distribute up to 40,000 flyers per constituency pertaining to the submitted candidate.
(8) The flyer set forth in paragraph (1), items (i) to (iii) and (v) to (vii) shall not exceed 29.7 centimeters in length and 21 centimeters in width, and the flyer set forth in paragraph (2) shall not exceed 42 centimeters in length and 29.7 centimeters in width.

Article 143, paragraphs (1) and (3) of the Public Offices Election Act
(1) Except for documents or pictures used for an election campaign that fall under any of the following items (in an election of members of the House of Representatives to be elected by proportional representation, those that fall under items (i), (ii), (iv) and (v) and that are used by a political party or group submitting a candidate list for the House of Representatives), no other document or picture may be put up:
(i) posters, standing signboards, paper lanterns, fixed signboards and the like used to indicate an election office at the location of the office;
(ii) posters, standing signboards, paper lanterns, fixed signboards and the like attached to a motor vehicle or vessel to be used for an election campaign pursuant to the provisions of Article 141;
(iii) sashes, badges, armbands and the like used by a candidate for public office;
(iv) posters, standing signboards, paper lanterns, fixed signboards and the like used at a hall where and while a speech meeting is being held;
(iv)-2 posters for the announcement of an individual candidate's speech meeting (limited to the case of an election of members of the House of Representatives to be elected from single-seat constituencies, members of the House of Councillors to be elected from constituencies, or a prefectural governor); and
(v) in addition to what is listed in each of the preceding items, posters used for an election campaign (in an election of members of the House of Councillors to be elected by proportional representation, limited to those used by a person on the candidate list of the House of Councillors who is a candidate for public office).
(3) In an election of members of the House of Representatives (to be elected from single-seat constituencies), members of the House of Councillors (to be elected from constituencies), or a prefectural governor, the poster for the announcement of an individual candidate's speech session set forth in paragraph (1), item (iv)-2 and the poster used for an election campaign pursuant to the provisions of item (v) of said paragraph (excluding one used by a political party submitting candidates in an election of members of the House of Representatives to be elected from single-seat constituencies) may not be put up except for only one, respectively, per candidate for public office on each bulletin board of posters set up pursuant to the provisions of Article 144-2, paragraph (1).

Article 144, paragraphs (1) and (4) of the Public Offices Election Act
(1) The poster set forth in Article 143, paragraph (1), item (v) may not be put up in excess of the number specified for the following categories; provided, however, that the poster set forth in item (i) may be put up only up to 1,000 per constituency pertaining to the submitted candidate:
(i) those used by a political party submitting candidates in an election of members of the House of Representatives (to be elected from single-seat constituencies): per prefecture that comprises the constituency(s) pertaining to the submitted candidate(s), the number calculated by multiplying 1,000 by the number of candidates submitted by the political party submitting candidates in the relevant prefecture;
(ii) those used by a political party or group submitting a candidate list for the House of Representatives in an election of members of the House of Representatives (to be elected by proportional representation): per constituency pertaining to the submitted candidate list for the House of Representatives, the number calculated by multiplying 500 by the number of persons on the list submitted by the political party or group submitting the list in the relevant constituency;
(ii)-2 in an election of members of the House of Councillors (to be elected by proportional representation): 70,000 per person on the candidate list for the House of Councillors who is a candidate for public office;
(iii) in an election of assembly members of a prefecture, assembly members or the mayor of a city: 1,200 per candidate for public office; in an election of the mayor of a designated city, 4,500 per candidate; and
(iv) in an election of assembly members or the head of a town or village: 500 per candidate for public office.
(4) The poster set forth in Article 143, paragraph (1), item (v), when it is used by a political party or group submitting a candidate list for the House of Representatives in an election of members of the House of Representatives (to be elected by proportional representation), may be put up only in up to three kinds submitted to the Central Election Management Council per constituency; the poster used by a political party submitting candidates in an election of members of the House of Representatives (to be elected from single-seat constituencies) or by a political party or group submitting a candidate list for the House of Representatives in an election of members of the House of Representatives (to be elected by proportional representation) shall not exceed 85 centimeters in length and 60 centimeters in width, and other posters shall not exceed 42 centimeters in length and 30 centimeters in width.

Article 149, paragraph (1) of the Public Offices Election Act
(1) In an election of members of the House of Representatives (to be elected from single-seat constituencies), a candidate may, as provided by Ordinance of the Ministry of Internal Affairs and Communications, place an advertisement concerning the election, in the same size, in any one newspaper, up to five times, during the period of the election campaign, and a political party submitting candidates may, as provided by Ordinance of the Ministry of Internal Affairs and Communications, place an advertisement concerning the election, in the size as specified by Ordinance of the Ministry of Internal Affairs and Communications according to the number of candidate(s) submitted by the political party submitting candidates in the relevant prefecture (up to 16 if the number exceeds 16), in any one newspaper, up to the number of times as specified by Ordinance of the Ministry of Internal Affairs and Communications, during the period of the election campaign.

Article 150, paragraphs (1) and (4) of the Public Offices Election Act
(1) In an election of members of the House of Representatives (to be elected from single-seat constituencies), a political party submitting candidates may, as provided by Cabinet Order, broadcast its political opinions (including the introduction of the candidate(s) submitted by the political party submitting candidates; hereinafter the same shall apply in this paragraph), free of charge, for the public interest, with the use of the broadcasting facilities for radio broadcasting or television broadcasting (meaning the medium-wave broadcasting prescribed in Article 2, item (ii)-3 of the Broadcast Act (Act No. 132 of 1950) or the television broadcasting prescribed in item (ii)-5 of said Article; the same shall apply hereinafter) of Japan Broadcasting Corporation and a general broadcasting organization, during the period of the election campaign. In this case, Japan Broadcasting Corporation and a general broadcasting organization shall broadcast the political opinions which they have recorded in sound or video recordings or which the political party submitting candidates has recorded in sound or video recordings, without alteration.
(4) With regard to the broadcasting set forth in paragraph (1), all political parties submitting candidates that have candidates in the relevant prefecture shall be provided with equal conveniences, through measures such as letting them use the same broadcasting facilities and giving the number of hours as specified by Cabinet Order according to the number of candidates submitted by the political party submitting candidates in the relevant prefecture (up to 12 if the number exceeds 12).

Article 151-5 of the Public Offices Election Act
Except as provided in this Act, no person may carry out broadcasting or have another carry out broadcasting for an election campaign, using broadcasting facilities (including broadcasting facilities for advertising, broadcasting facilities for joint listening, and other wired telecommunication facilities).

Article 161, paragraph (1) of the Public Offices Election Act
(1) A candidate for public office (excluding those other than a candidate in an election of members of the House of Representatives to be elected by proportional representation who is also a candidate in an election of members of the House of Representatives to be elected from single-seat constituencies that is held concurrently with the former election; the same shall apply in the following Article through Article 164-3), a political party submitting candidates, and a political party or group submitting a candidate list for the House of Representatives may hold an individual candidate's speech meeting, political party's speech meeting or political party or group's speech meeting, respectively, using the following facilities (in the case of a political party submitting candidates, limited to those located in the area of the prefecture that comprises the constituency(s) pertaining to the submitted candidate(s); in the case of a political party or group submitting a candidate list for the House of Representatives, limited to those located in the area(s) of the constituency(s) pertaining to the submitted candidate list for the House of Representatives):
(i) schools and community halls (meaning the community hall prescribed in Article 21 of the Social Education Act (Act No. 207 of 1949));
(ii) public halls under the management of a local public entity; and
(iii) in addition to what is listed in each of the preceding two items, facilities designated by a municipal election management committee.

Article 161-2 of the Public Offices Election Act
A candidate for public office, a political party submitting candidates, and a political party or group submitting a candidate list for the House of Representatives may hold an individual candidate's speech meeting, a political party's speech meeting or political party or group's speech meeting, respectively, using a facility other than those prescribed in paragraph (1) of the preceding Article (such facility shall include the building and other premises of the facility; in the case of a political party submitting candidates, limited to those located in the area of the prefecture that comprises the constituency(s) pertaining to the submitted candidates; in the case of a political party or group submitting a candidate list for the House of Representatives, limited to those located in the area(s) of the constituency(s) pertaining to the submitted candidate list for the House of Representatives),.

Article 3 of the Act for Establishment of the Council of Demarcation of Constituencies for Members of the House of Representatives
(1) The drafting of a revision plan under the provisions of the preceding Article shall be performed with the aim of striking a balance among constituencies in terms of population, in accordance with the principle of ensuring that among the populations of constituencies (meaning the populations based on the results of the most recent population census publicly announced in an official gazette or any nationwide population survey equivalent thereto; the same shall apply hereinafter), the number calculated by dividing the largest population by the smallest population will not be two or more, and in a reasonable manner by comprehensively taking into consideration the demarcation of administrative districts, geographical features, transportation conditions, and other circumstances.
(2) In drafting a revision plan as set forth in the preceding paragraph, the number of constituencies for members of the House of Representatives to be elected from single-seat constituencies which are to be established within the area of each prefecture shall be the sum of one plus the number calculated by deducting the number of prefectures from the number of seats for members of the House of Representatives to be elected from single-seat constituencies, prescribed in Article 4, paragraph (1) of the Public Offices Election Act (Act No. 100 of 1950), and then apportioning the result to prefectures in proportion to population.

The final appeal is dismissed.
The appellants of final appeal shall bear the cost of the final appeal.

Concerning the reasons for final appeal, argued by the appellants who also stand as appeal counsels, YAMAGUCHI Kuniaki, MORI Toru, and MISAO Michihiko, and the appellant NONOYAMA Tetsuro
1. This case is a suit to seek invalidation of an election filed by the appellants who are voters in the respective constituencies in Tokyo, namely, the 2nd, 5th, 6th, 8th, 9th, 11th, 12th, and 18th Constituencies, with regard to the general election of members of the House of Representatives held on August 30, 2009 (hereinafter referred to as the "Election"), alleging that the provisions of the Public Offices Election Act, etc. concerning the demarcation of constituencies and the election campaigns for an election of members of the House of Representatives to be elected from single-seat constituencies (hereinafter referred to as “election in single-seat constituencies”) are in violation of the Constitution and invalid, and therefore the elections held in said constituencies as part of the Election pursuant to these provisions are also invalid.

2. The outline of the facts legally determined by the court of prior instance is as follows.
(1) The Public Offices Election Act, enacted in 1950, adopted the single-vote system based on medium-sized multi-seat constituencies, and Appended Table 1, which specified the number of seats apportioned to each constituency under said election system, was followed by the provision stating that said table shall be revised every five years after the date of enforcement of said Act, based on the results of the most recent population census. At the time of the enactment of said Act, the maximum disparity between constituencies in the value of votes was 1:1.51 (based on the results of the special statistical survey conducted before the enactment).
Subsequently, despite the rapid influx of population into urban areas, said appended table regarding the apportionment of seats had not been revised until 1964, when it only went through a minor revision to increase the number of seats by 19. As a result, as of the time of the general election held in 1972, the maximum disparity between constituencies in the value of votes expanded to 1:4.99, leading the Supreme Court to find unconstitutionality in the provisions on the apportionment of seats, given such a disparity (1974 (Gyo-Tsu) No. 75, judgment of the Grand Bench of the Supreme Court of April 14, 1976, Minshu Vol. 30, No. 3, at 223). In 1975, while said action was pending, revision was made to the Public Offices Election Act to increase the number of seats by 20, and yet, at the time of the general election held in 1980 based on the revised number of seats, the maximum disparity between constituencies in the value of votes was still as large as 1:3.94. The Supreme Court stated that, although it was difficult to declare that no measure had been taken to rectify the situation within a reasonable period of time as required under the Constitution, said disparity was at a level that failed to meet the constitutional requirement of equality in the right to vote (1981 (Gyo-Tsu) No. 57, judgment of the Grand Bench of the Supreme Court of November 7, 1983, Minshu Vol. 37, No. 9, at 1243). Furthermore, at the time of the general election held in 1983 based on the same number of seats, the maximum disparity between constituencies in the value of votes expanded to 1:4.40. The Supreme Court found again that given such disparity, the provisions on the apportionment of seats were unconstitutional (1984 (Gyo-Tsu) No. 339, judgment of the Grand Bench of the Supreme Court of July 17, 1985, Minshu Vol. 39, No. 5, at 1100). At the time of the population census in 1985, the maximum disparity between constituencies in the value of votes expanded to 1:5.12. In view of these developments in the situation, the Public Offices Election Act was revised in 1986 in a manner that involved the reduction of seats for the first time, adding one seat each to eight constituencies while taking one seat each from seven others, and then said Act was further revised in 1992 by adding one seat each to nine constituencies while taking one seat each from ten others. These measures resulted in reducing the disparity to some extent, but the situation remained with the maximum disparity still standing at a level near 1:3.
Under such circumstances, the eighth report of the Election System Council, released in April 1990, recommended that: (i) with the aim of realizing a policy-oriented and party-centered election, a combined election system of single-seat constituencies and proportional representation should be introduced in replacement of the conventional single-vote system based on medium-sized multi-seat constituencies; (ii) as a basic principle, the disparity in terms of population between constituencies in an election in single-seat constituencies must be below 1:2; (iii) in order to correct the disparity between constituencies, an authoritative third party body should be established to draft a revision plan and perform review every ten years. Based on this report, the drafting of a system reform bill was carried out.
(2) Following these developments in the situation, the Act for Partial Revision of the Public Offices Election Act (Act No. 2 of 1994) was enacted in January 1994, and through the subsequent partial revisions by Act No. 10 of 1994 and Act No. 104 of 1994, the election system for members of the House of Representatives was changed from the conventional single-vote system based on medium-sized multi-seat constituencies to the combined election system of single-seat constituencies and proportional representation (the election system after these legal revisions shall hereinafter be referred to as the “Election System”).
Under the Election System at the time when the Election was held, the number of members of the House of Representatives was 480, of which 300 shall be elected from single-seat constituencies and 180 shall be elected by proportional representation (Article 4, paragraph (1) of the Public Offices Election Act). As for an election based on single-seat constituencies, the whole area of the country was divided into 300 constituencies, with each constituency electing one member. As for an election of members to be elected by proportional representation (hereinafter referred to as an “election by proportional representation”), 11 constituencies were established nationwide, and the predetermined number of members shall be elected from each constituency (Article 13, paragraphs (1) and (2), and Appended Tables 1 and 2 of said Act). In a general election, an election in single-seat constituencies and an election by proportional representation shall be held concurrently, and each voter shall have one vote each in the respective elections (Articles 31 and 36 of said Act).
It is also provided that a candidate in an election in single-seat constituencies shall be submitted by a political party or any other political group that meets the prescribed requirements or by the candidate him/herself or his/her recommender (Article 86, paragraphs (1) to (3) of said Act). A political party or any other political group that has submitted candidates (hereinafter referred to as a “political party submitting candidates”) may carry out an election campaign using a motor vehicle, loudspeaker set, documents and pictures, etc. in addition to an election campaign carried out by the candidate him/herself, and may also place an advertisement in a newspaper, hold a speech meeting, etc. (Article 141, paragraph (2), Article 142, paragraph (2), Article 149, paragraph (1), Article 161, paragraph (1), etc. of said Act). A political party submitting candidates may also carry out broadcasting of its political opinions, which the candidate him/herself is not allowed to do (Article 150, paragraph (1) of said Act).
(3) Under the Act for Establishment of the Council of Demarcation of Constituencies for Members of the House of Representatives (hereinafter referred to as the “Act for Establishment of the Demarcation Council”), which was enacted concurrently with the aforementioned Act for Partial Revision of the Public Offices Election Act, the Council of Demarcation of Constituencies for Members of the House of Representatives (hereinafter referred to as the “Demarcation Council”) shall conduct investigation and deliberation on the revision of constituencies for members of the House of Representatives to be elected from single-seat constituencies, and when finding it necessary, the council shall draft a revision plan and recommend it to the Prime Minister (Article 2 of said Act). The revision plan mentioned above shall be drafted with the aim of striking a balance among constituencies in terms of population, in accordance with the principle of ensuring that among the populations of constituencies, the number calculated by dividing the largest population by the smallest population will not be two or more, and in a reasonable manner by comprehensively taking into consideration the demarcation of administrative districts, geographical features, transportation conditions, and other circumstances (Article 3, paragraph (1) of said Act). The number of constituencies to be established within the area of each prefecture shall be the sum of one apportioned to every prefecture (hereinafter referred to as the “rule of reserving one seat per prefecture”), plus the number calculated by deducting the number of prefectures from the number of seats for members of the House of Representatives to be elected from single-seat constituencies, and then apportioning the result to the prefectures in proportion to population (paragraph (2) of said Article).
The rule of reserving one seat per prefecture was adopted under said Act in the following developments in the situation. The eighth report of the Election System Council, released in April 1990, recommended that in the process of establishing constituencies, the number of constituencies to be established within the area of each prefecture, or in other words, the seats for members to be apportioned to each prefecture, should be determined in proportion to population. However, the revision bill, drafted following this report, provided that the seats shall be apportioned first under the rule of reserving one seat per prefecture, and then in proportion to population. At the Diet deliberation on this bill, the government that submitted the bill explained that when apportioning seats to prefectures, it was necessary to secure equality in the value of votes, but it was important as well to give consideration to depopulated areas, or more specifically, consideration to the sudden decrease in the number of seats to be apportioned to less populated regions, and from this viewpoint and for the purpose of ensuring that the opinions of people living in less populated prefectures would be reflected fully in national politics, the bill gave due consideration in relation to the apportionment of seats, and provided that at least one seat shall be first apportioned to each prefecture, and then the remaining seats shall be apportioned in proportion to population.
The aforementioned recommendation of the revision of constituencies shall be made within one year from the day on which the population based on the results of the population census conducted every ten years pursuant to the provisions of the main clause of Article 5, paragraph (2) of the Statistics Act was first made public in an official gazette (Article 4, paragraph (1) of the Act for Establishment of the Demarcation Council). The Demarcation Council may make such recommendation when it finds a significant imbalance between constituencies in terms of population or any other special reason to do so (paragraph (2) of said Article).
(4) The Demarcation Council, based on the results of the population census conducted in October 2000, as a population census required every ten years pursuant to the provisions of the main clause of Article 4, paragraph (2) of the Statistics Act (prior to the revision by Act No. 53 of 2007) (this population census shall hereinafter be referred to as the “2000 Population Census”), revised the apportionment of seats to constituencies for members of the House of Representatives to be elected from single-seat constituencies, by adding one seat each to five prefectures while taking one seat each from five others under Article 3, paragraph (2) of the Act for Establishment of the Demarcation Council, and drafted a plan for revision of constituencies within each prefecture under paragraph (1) of said Article and recommended the plan to the Prime Minister. This resulted in the enactment of the Act for Partial Revision of the Public Offices Election Act (Act No. 95 of 2002), which included the revision of the demarcation of constituencies as recommended. The election in single-seat constituencies, which formed part of the Election, was held based on the demarcation of constituencies as revised by said Act (hereinafter referred to as the “Demarcation of Constituencies”; Article 13, paragraph (1) and Appended Table 1 of the Public Offices Election Act, which specify the constituencies for members of the House of Representatives to be elected from single-seat constituencies on the occasion of the Election, shall hereinafter be collectively referred to as the “Provisions on Demarcation”).
(5) Looking at the disparity in population between constituencies under the Provisions on Demarcation on the basis of the population data obtained in the 2000 Population Census, the maximum disparity was 1:2.064 between Kochi 1st Constituency with the smallest population, and Hyogo 6th Constituency with the largest population, and as compared with Kochi 1st Constituency, the ratio exceeded 1:2 in nine constituencies. As of the day of the Election, the maximum disparity between constituencies in terms of the number of voters was 1:2.304 between Kochi 3rd Constituency with the smallest number of voters and Chiba 4th Constituency with the largest number of voters, and as compared with Kochi 3rd Constituency, the ratio exceeded 1:2 in 45 constituencies. In comparison by prefecture, the maximum disparity in the number of voters per member as of the day of the Election was 1:1.978 between Kochi Prefecture with the smallest number of voters and Tokyo Metropolis with the largest number of voters, per member.

3. The election system under representative democracy should be designed with the goal of ensuring that the interests and opinions of the people will be reflected in the administration of national politics fairly and effectively through the representatives they elected, and at the same time, the features of the election system in each country should be determined depending on the circumstances in the respective country, while taking into consideration the requirement of stability in national politics. There is no such thing as a logically determined unalterable form of election system. For these reasons, the Constitution of Japan provides that, under the fundamental requirement that every member of the Diet shall represent all the people (Article 43, paragraph (1)), the number of seats, the constituencies, the method of voting, and other matters concerning elections of members of the respective Houses of the Diet shall be specified by law (Article 43, paragraph (2), Article 47), thus allowing the Diet to have a broad discretion to determine the design of the election system for members of each House. Consequently, the features of the design of the election system specifically determined by the Diet should be judged to be unconstitutional only where these features run counter to said fundamental requirement or the constitutional requirements such as equality under the law, and go beyond the bounds of the discretion vested in the Diet as mentioned above, and therefore they are unacceptable (See the aforementioned judgment of the Grand Bench of the Supreme Court of April 14, 1976, the aforementioned judgment of the Grand Bench of the Supreme Court of November 7, 1983, the aforementioned judgment of the Grand Bench of the Supreme Court of July 17, 1985, 1991 (Gyo-Tsu) No. 111, judgment of the Grand Bench of the Supreme Court of January 20, 1993, Minshu Vol. 47, No. 1, at 67, 1999 (Gyo-Tsu) No. 7, judgment of the Grand Bench of the Supreme Court of November 10, 1999, Minshu Vol. 53, No. 8, at 1441, 1999 (Gyo-Tsu) No. 35, judgment of the Grand Bench of the Supreme Court of November 10, 1999, Minshu Vol. 53, No. 8, at 1704, 2006 (Gyo-Tsu) No. 176, judgment of the Grand Bench of the Supreme Court of June 13, 2007, Minshu Vol. 61, No. 4, at 1617).

4. Now, from the aforementioned standpoint, we examine the constitutionality of the Provisions on Demarcation.
(1) The appellants and appeal counsels argue that, with regard to the apportionment of seats for Diet members, the Constitution requires that the apportionment be proportionate to population, and when equality in the value of votes is concerned, the Diet does not have a broad discretion. Based on this argument, they further allege as follows: (i) The provisions of Article 3, paragraph (2) of the Act for Establishment of the Demarcation Council, which specify the rule of reserving one seat per prefecture, run counter to the requirement of equality in the value of votes and violate Article 14, paragraph (1) and other provisions of the Constitution. (ii) The Provisions on Demarcation also violate Article 14, paragraph (1) and other provisions of the Constitution in that said provisions are premised on the rule of reserving one seat per prefecture, and that despite the fact that it was possible to demarcate constituencies so that the disparity in population would be below two in all constituencies even when the rule of reserving one seat per prefecture had been adopted as a premise, said provisions led to the creation of as many as nine constituencies where the disparity in population reached 1:2 or larger at the time of the revision of the demarcation in 2002.
(2) It is understood that the Constitution requires equality in the substance of the right to vote, or in other words, equality in the value of votes. However, equality in the value of votes is not the absolute criterion for determining the design of an election system, but it must be realized in harmony with other policy purposes and grounds that the Diet is duly authorized to consider. Insofar as specific matters determined by the Diet are justified as a reasonable exercise of its discretion, it cannot be helped even when such determination might lead to asking for a concession to a certain extent on the part of equality in the value of votes.
The Constitution requires that, in the case of adopting a system for holding an election of members of the House of Representatives by dividing the whole area of the country into a number of constituencies, securing equality in the number of voters or population per member to the greatest possible extent should be the most important and essential criterion for determining the apportionment of seats and the demarcation of constituencies as features of the design of an election system. The Constitution also allows the Diet to take other factors into consideration as long as it is reasonable to do so.
In the process of determining specific features of an election system, prefectures have been regarded as the basis for the apportionment of seats and the demarcation of constituencies as they have been considered to serve as important units in social life and also for their political and social functions. Under the election system for members of the House of Representatives, prefectures have been the primary basis for the apportionment of seats. Municipalities or other administrative districts created by subdividing prefectures have been supposed to be specific constituencies, while taking into account various factors including the size, population density, composition of residents, transportation conditions, and geographical situations of the respective areas. Amid the changes in population, the Diet is required to, while taking these various factors into account, ensure that the will of the people will be reflected properly so as to carry out national politics, and at the same time, reconcile this with the requirement of securing equality in the value of votes. Consequently, determination as to the constitutionality of an election system is to be made by examining whether or not, even when all of these circumstances are comprehensively taken into account, the election system is justifiable as a reasonable exercise of the discretion vested in the Diet.
This reasoning is in line with the purports of the respective judgments of the Grand Bench mentioned above, and there is no need to modify it.
(3) The criteria for demarcation of single-seat constituencies under the Election System are specified in Article 3 of the Act for Establishment of the Demarcation Council (these criteria and the relevant provisions shall hereinafter be referred to as the “Criteria for Demarcation” and the “Provisions on Criteria for Demarcation,” respectively). Paragraph (1) of said Article provides that the drafting of a revision plan shall be performed in accordance with the principle of ensuring that the maximum disparity between constituencies in terms of population will be below two. This can be a reasonable criterion established with due consideration given to equality in the value of votes.
On the other hand, as mentioned above, paragraph (2) of said Article adopts the rule of reserving one seat per prefecture, and as described in 2(3) above, it was explained that the purpose of this rule was to apportion more seats to relatively less populated prefectures, so that the will of the people living in less populated prefectures will also be fully reflected in national politics. However, members to be elected under this election system are, irrespective of in which regions their constituencies are located, required to take part in national politics as representatives of all the people. Consideration to relatively less populated regions is a matter that these members should take into account when making laws and performing other duties from a nationwide perspective in the course of carrying out such political activities. It can hardly be justified as being reasonable to cause, only for the purpose of coping with problems arising from regional circumstances, inequality in the value of votes between voters in particular regions (prefectures) and those in other regions (prefectures). What is more, at the time of the Election, the maximum disparity between prefectures in terms of the value of votes already reached around the level of 1:2 after the first stage of apportionment of seats to each prefecture under the rule of reserving one seat per prefecture. Thus, it is obvious that the rule of reserving one seat per prefecture became the major factor causing the disparity between constituencies in terms of the value of votes as described in 2(5) above. The significance of the rule of reserving one seat per prefecture seems to have been somewhat explained at the time of legislation, i.e. consideration to the sudden decrease in the number of seats to be apportioned to less populated regions. More specifically, in light of the history of the election system in Japan as described above, and in particular, the situation where it was extremely difficult to reduce the number of seats in response to population changes, if, upon the introduction of a new election system, seats for Diet members were apportioned to each prefecture exclusively in proportion to population, the number of seats to be apportioned to less populated prefectures would be reduced suddenly and considerably, and therefore it was necessary to secure stability and continuity in national politics, and said rule was adopted under the circumstances where, without consideration to such necessity of securing stability and continuity, among others, the reform of the election system in itself was difficult to achieve.
Assuming so, the rule of reserving one seat per prefecture is reasonable only for a limited period of time, and once a new election system has been established and put into stable operation, it is no longer reasonable. The aforementioned judgment of the Grand Bench of the Supreme Court of June 13, 2007, indicated a determination on the general election that was held on September 11, 2005, when ten years had not yet passed since the first general election held in 1996 following the introduction of the Election System, and when the population census for 2005 had not yet been conducted. In said judgment, the court determined that at the time of said date, it seems to have been reasonable to some extent to maintain the rule of reserving one seat per prefecture, and therefore it cannot be deemed to have become contrary to the constitutional requirement of equality in the value of votes. We can affirm this judgment from the viewpoints shown above. The same applies to similar determinations indicated in the aforementioned judgments of the Grand Bench of the Supreme Court of November 10, 1999, relating to the general elections held in 1996 and 2000, respectively, as well as in 2001 (Gyo-Tsu) No. 223, the judgment of the Third Petty Bench of the Supreme Court of December 18, 2001, Minshu Vol. 55, No. 7, at 1647. On the other hand, when the Election was held, more than ten years had passed since the first general election held in 1996 following the introduction of the Election System. During this period, through the procedure prescribed in the Act for Establishment of the Demarcation Council, revision of constituencies took place in 2002 based on the results of the population census conducted in 2000, and then in light of the results of the population census conducted in 2005, review was considered but it was decided not to make a revision of constituencies, and accordingly, a general election was held twice based on the aforementioned revised constituencies. In view of these circumstances, we can evaluate that the Election System was established and put into stable operation, and we should say that the rule of reserving one seat per prefecture was no longer reasonable as described above. In addition, as mentioned in 2(5), the maximum disparity between constituencies in terms of the value of votes that existed at that time based on the Demarcation of Constituencies reached 1:2.304, and the number of constituencies with the ratio being 1:2 or larger has increased. The rule of reserving one seat per prefecture has been the major factor causing such a disparity between constituencies in terms of the value of votes, or to put it another way, unreasonableness of said rule has come to the surface in the form of the disparity in the value of votes. Then, we should say that the part of the Criteria for Demarcation which pertains to the rule of reserving one seat per prefecture, at the time of the Election at the latest, was no longer reasonable as it had been at the time of legislation but incompatible with equality in the value of votes, and by that time, said part itself had become contrary to the constitutional requirement of equality in the value of votes. Because the Demarcation of Constituencies was established based on the Criteria for Demarcation, including the rule of reserving one seat per prefecture, which were in the aforementioned state at the time of the Election, it had also become contrary to the constitutional requirement of equality in the value of votes by that time.
However, the aforementioned judgment of the Grand Bench of the Supreme Court of June 13, 2007, found that neither the Criteria for Demarcation, including the rule of reserving one seat per prefecture, nor the Demarcation of Constituencies, by the time of the general election held in 2005, had become contrary to the constitutional requirement of equality in the value of votes as described above. Considering this, we cannot conclude that no correction had been made within a reasonable period of time as required by the Constitution only because, by the time when the Election was held, the rule of reserving one seat per prefecture, which is included in the Criteria for Demarcation, had not been abolished, nor had the Provisions on Demarcation, premised on this rule, been corrected.
(4) According to the reasoning shown above, the part of the Criteria for Demarcation under the Provisions on Criteria for Demarcation, which pertains to the rule of reserving one seat per prefecture, by the time of the Election, had become contrary to the constitutional requirement of equality in the value of votes, and the Demarcation of Constituencies under the Provisions on Demarcation as revised according to said criteria, by that time, had also become contrary to the constitutional requirement of equality in the value of votes; yet, it cannot be said that no correction had been made to either of them within a reasonable period of time as required by the Constitution, and in conclusion, the Provisions on Criteria for Demarcation and the Provisions on Demarcation cannot be found to be in violation of Article 14, paragraph (1) or other provisions of the Constitution.
(5) An election system that can properly reflect the will of the people is the foundation of democracy. In the rapidly changing society, it is not an easy task to realize such an election system, while meeting the constitutional requirement of equality in the value of votes, and in order to perform that task properly, the legislature is vested with a broad discretion. However, the rule of reserving one seat per prefecture is regarded as being reasonable only for a limited period of time, in the situation where it was adopted upon the first drastic post-war reform of the election system for members of the House of Representatives. Viewed away from such situation, said rule should inevitably be judged to be incompatible with the constitutional requirement of equality in the value of votes. The House of Representatives, in light of its power, the term of office of its members, the existence of the rule of its dissolution, and other features, is required to always reflect the will of the people properly, and it is subject to a more severe requirement in respect of equality in the value of votes in elections of its members. Consequently, within a reasonable period of time as required for correction depending on the nature of the respective problems, legislative measures must be taken to meet the requirement of equality in the value of votes, such as abolishing, as quickly as possible, the rule of reserving one seat per prefecture, which is included in the Criteria for Demarcation, and revising the Provisions on Demarcation in line with the purport of Article 3, paragraph (1) of the Act for Establishment of the Demarcation Council.

5. Next, we examine the constitutionality of the provisions of the Public Offices Election Act concerning election campaigns for an election in single-seat constituencies.
(1) The appellants and appeal counsels argue as follows. With regard to election campaigns for an election in single-seat constituencies, the Public Offices Election Act applies preferable treatment to candidates who are affiliated with political parties submitting candidates, while applying discriminatory treatment to other candidates, and as a result, said Act prevents voters, when casting their votes, from having balanced access to the information on the qualifications, political opinions, and other features of the respective candidates, which voters would use as references for making their voting decisions, thereby hindering voters’ proper exercise of their right to vote. For this reason, the provisions of said Act concerning election campaigns for an election in single-seat constituencies violate Article 14, paragraph (1) and other provisions of the Constitution.
(2) Presumably, the reform of the election system for members of the House of Representatives, which took place in 1994, aimed to make the election system more policy-oriented and party-centered. Political parties are an essential element for supporting parliamentary democracy, and they are also the most influential medium through which the people will form their political will. Therefore, it is clearly within the scope of the Diet’s discretion to make the design of the election system for members of the House of Representatives more policy-oriented and party-centered, in light of the important role of political parties in national politics. The Constitution requires equal treatment of candidates in relation to election campaigns, but does not prohibit different treatment if it seems to be based on reasonable grounds. Therefore, only when specific matters determined by the Diet are judged to be harmful to equality between candidates to the extent that it cannot be approved as a reasonable exercise of its discretion will such determination become contrary to the constitutional requirements.
According to the provisions of the Public Offices Election Act, in an election in single-seat constituencies, not only candidates but also political parties submitting candidates, which only political parties or groups with certain records in the past elections are eligible to be, are permitted to carry out election campaigns. This legislative measure can be regarded as being reasonable to some degree in light of the policy purpose and ground that the Diet is duly authorized to consider, that is, the aim of making the election system more policy-oriented and party-centered, and it cannot be found to be beyond the bounds of the Diet’s discretion.
In addition to candidates, political parties submitting candidates are also allowed to carry out election campaigns, and this inevitably leads to create a difference in relation to election campaigns between candidates who are affiliated with such political parties and those who are not. Only when such difference reaches a level where it cannot be regarded as reasonable, the decision to create said difference is found to be beyond the bounds of the Diet’s discretion. As mentioned in 2(2) above, the Public Offices Election Act provides for difference between candidates in relation to election campaigns with the use of motor vehicles, loudspeaker sets, documents and pictures, etc. and election campaigns via newspaper advertisement, speech meetings, etc. That difference remains at a level where it unavoidably occurs as a result of allowing political parties submitting candidates to carry out election campaigns, whereas candidates who are not affiliated with any such political party may carry out various types of election campaigns, and these election campaigns do not themselves seem to be insufficient as means for those candidates to communicate their political opinions, etc. to voters. In view of this, it is difficult to find that creating the aforementioned difference is beyond the bounds of the Diet’s discretion and therefore unconstitutional. Article 150, paragraph (1) of the Public Offices Election Act allows political parties submitting candidates alone to broadcast their political opinions, which is, as is in the case of other provisions concerning election campaigns by political parties submitting candidates, derived from the reasonable legislative purpose of making the election system more policy-oriented and party-centered. Broadcasting of political opinions is only one type of an election campaign, whereas various other types of election campaigns available to candidates who are not affiliated with any political party submitting candidates are not insufficient as means for those candidates to communicate their political opinions, etc. to voters. It cannot be denied that it is considerably difficult in practical terms to provide all of the candidates who run for an election in single-seat constituencies with the opportunity to broadcast their political opinions. In view of these points, we cannot go so far as to declare that the aforementioned difference reaches a level where it cannot be regarded as reasonable, nor can we say that the Diet’s decision to create said difference goes beyond the bounds of its reasonable discretion, merely by reason of the different treatment in relation to broadcasting of political opinions.
(3) Consequently, the provisions of the Public Offices Election Act concerning election campaigns in an election in single-seat constituencies cannot be found to be in violation of Article 14, paragraph (1) or other provisions of the Constitution. This has also been indicated in the aforementioned judgment of the Grand Bench of the Supreme Court of November 10, 1999 (1999 (Gyo-Tsu) No. 35), and the aforementioned judgment of the Grand Bench of the Supreme Court of June 13, 2007, and there is no need to modify it.

6. For the reasons stated above, we can affirm the determination of the court of prior instance that the Provisions on Demarcation cannot be deemed to have been unconstitutional at the time of the Election, and that the provisions of the Public Offices Election Act concerning election campaigns for an election in single-seat constituencies cannot be found to be unconstitutional. We cannot accept the arguments of the appellants and appeal counsels.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices, except that there are dissenting opinions by Justice TAHARA Mutsuo and Justice MIYAKAWA Koji, respectively. There are also concurring opinions by Justice TAKEUCHI Yukio and Justice SUDO Masahiko, and an opinion by Justice FURUTA Yuki, respectively.

The concurring opinion by Justice TAKEUCHI Yukio is as follows.
I am in agreement with the majority opinion, but in relation to the point indicated in 4(3) of this judgment, I would like to express my understanding and perception with regard to the rule of reserving one seat per prefecture.
1. The Criteria for Demarcation, including the rule of reserving one seat per prefecture, is not directly contradictory to or in conflict with the principle of national representation provided in Article 43, paragraph (1) of the Constitution.
(1) Article 43, paragraph (1) of the Constitution provides that members of both Houses shall be representative of all the people (hereinafter referred to as the “principle of national representation”). In the precedent case, this court clearly stated that this principle “is understood as originally meaning that members of both Houses, irrespective of how they have been elected, are representative not only of part of the people, such as those of a specific class, party or region, but of all the people, and they are entrusted with the mission to act on behalf of all the people independently, without being bound by instructions of particular voters” (1999 (Gyo-Tsu) No. 7, judgment of the Grand Bench of the Supreme Court of November 10, 1999, cited by the majority opinion). The duty to act as the representative of all the people under Article 43, paragraph (1) of the Constitution is imposed equally on all of the Diet members. Once elected, whether from single-seat constituencies or proportional-representation constituencies, all of the members of both Houses must follow this code of conduct. As clearly pointed out by this court in the aforementioned precedent case, just because an election was held under the election system designed to include the rule of reserving one seat per prefecture “does not mean that it is contradictory to or in conflict with the elected members’ role as representatives of all the people.”
(2) In general, it is difficult to judge appropriateness of a specific election system easily from the viewpoint of Article 43, paragraph (1) of the Constitution. Nevertheless, if a member elected under the election system that includes the rule of reserving one seat per prefecture is bound by instructions of particular voters or is legally censured by particular voters for his/her activities in the Diet, the member under such constraints cannot be regarded as being representative of all the people but only serving as a “regional representative,” which would be in conflict with the principle of national representation under Article 43, paragraph (1) of the Constitution. However, the Election System that includes the rule of reserving one seat per prefecture has not imposed any such additional constraints. There has been no change in the conventional code of conduct requiring members, once elected, to act at their own discretion in the capacity of representatives of all the people, nor has it become more difficult than before for them to act in this way.
Supposing some might argue that the principal purpose of adopting the rule of reserving one seat per prefecture was to apportion more seats to relatively less populated prefectures, so that the will of the people living in less populated prefectures will also be fully reflected in national politics, and this was the reason for introducing the concept of “regional representatives,” which is contrary to Article 43, paragraph (1) of the Constitution, such an argument is not based on a correct understanding of national representation and regional representation. In the first place, under the rule of reserving one seat per prefecture, at least one seat is apportioned to every prefecture in advance. There is no such single-seat constituency especially established for the rule of reserving one seat per prefecture, nor does this rule lead to creating regional representatives who are to be bound by instructions of voters within a particular constituency. It is unthinkable that Article 3, paragraph (2) of the Act for Establishment of the Demarcation Council presupposed the concept of regional representatives in a meaning that would conflict with Article 43, paragraph (1) of the Constitution.
The question that arises here is why it is permissible to apportion more seats to relatively less populated prefectures. On this point, this court has maintained its stance in the past cases, holding that, “the issue of how to address phenomena such as the concentration of population in urban areas and the depopulation of the areas from which people migrate to urban areas, and how to reflect these problems in the demarcation of constituencies and the apportionment of seats, is the factor that the Diet is authorized to take into consideration” (the judgment of the Grand Bench of the Supreme Court of November 10, 1999, the judgment of the Third Petty Bench of the Supreme Court of December 18, 2001, cited by the majority opinion, and the judgment of the Grand Bench of the Supreme Court of June 13, 2007, all mentioned above). I agree with the view that the issue pointed out in these precedent judgments is one of the factors that the Diet is authorized to take into consideration when working on the demarcation of constituencies, etc.

2. I have the following view concerning the relationship between the rule of reserving one seat per prefecture and the issue of equality in the value of votes.
(1) As mentioned above, it may be permissible for the Diet to give consideration to phenomena such as the concentration of population in urban areas and the depopulation in the course of determining the demarcation of constituencies and the apportionment of seats. However, this is only one of the factors that the Diet is authorized to take into consideration at its comprehensive discretion, and it is of course not superior to other factors to be taken into consideration. What matters here is whether or not such a factor for consideration can be the reason for modifying equality in the value of votes.
The Constitution adopts the bicameral system for the Diet, the highest organ of state power, and expects the House of Representatives and the House of Councillors to exert their own characteristic functions respectively. According to the reason why the Constitution adopts the bicameral system, the doctrine relating to the election base is not required to be the same for members of both Houses, but rather it is natural that different doctrines apply. As for an election of members of the House of Councillors, it is compatible with the purport of the bicameral system to take into consideration a wider range of reasonable political purposes and grounds other than the strict principle of apportionment in proportion to population, with the objective of reflecting the will of the people from diverse perspectives. On the other hand, in the case of an election of members of the House of Representatives, which is given the status of the primary house, there is no need to dwell on the fact that strict equality in the value of votes is the most important and essential criterion, although it is not the sole and absolute one (for my opinion that the election base must differ between members of the House of Representatives and members of the House of Councillors, refer to my concurring opinion in 2008 (Gyo-Tsu) No. 209, judgment of the Grand Bench of the Supreme Court of September 30, 2009, Minshu Vol. 63, No. 7, at 1520).
In an election of the members of the House of Representatives, which must conform to said criterion, it is obvious that the rule of reserving one seat per prefecture became the major factor causing the disparity between constituencies in terms of the value of votes, and it is also true that a question has been posed as to whether or not the rule of reserving one seat per prefecture is reasonable enough for modifying equality in the value of votes. On this point, as indicated in the majority opinion, it should be noted that, when a drastic reform was attempted for the first time in the post-war history of the election system reform in this country, it was presumably difficult to realize a reform itself if seats were to be apportioned to prefectures directly and exclusively in proportion to population. Under such circumstances, the Diet, after giving consideration from a comprehensive perspective, adopted the rule of reserving one seat per prefecture as a choice that would meet the needs of the times. This court has determined several times that the decision to adopt this rule was included in the scope of the Diet’s discretion and therefore constitutional.
Considering that equality in the value of votes in a national election cannot be realized at a single stroke, the rule of reserving one seat per prefecture could be regarded as having had significance in history as a kind of catalyst in the process of carrying out a reform toward realizing equality in the value of votes in an election of members of the House of Representatives. In reality, based on the demarcation of constituencies under the Act for Establishment of the Demarcation Council enacted in 1994, disparity in the value of votes was actually reduced.
(2) Nevertheless, it is also true that the Diet’s consideration to such circumstances cannot at all be deemed to give a permanently reasonable basis for modifying equality in the value of votes. A further step forward must be taken in the process toward realizing equality in the value of votes in an election of members of the House of Representatives.
When we think of an ideal form for the governing structure under the Constitution of our country, in light of various factors including the function that should be fulfilled by the House of Representatives?the primary house of the Diet?, the necessity that the will of the people should be directly reflected in the process of making policy decisions via the House of Representatives, and the growing demand among the people for equality in the value of votes, it is impermissible that we are satisfied with the current situation where the maximum disparity between constituencies in the value of votes exceeds 1:2 in an election of members of the House of Representative? the primary house of the Diet?, and take no corrective measures, just leaving such situation as a normal state. We must not forget that, before waiting to be criticized by this court, the legislature ought to make persistent efforts toward realizing equality in the value of votes.
However, in the aforementioned judgment of the Grand Bench of the Supreme Court June 13, 2007, this court declared that the Criteria for Demarcation, including the rule of reserving one seat per prefecture, and the Demarcation of Constituencies, had not become contrary to the constitutional requirement of equality in the value of votes by the time of the general election in 2005. In view of this, I would say that the necessary measures should be taken as soon as possible within a reasonable period of time, following the judgment of this case, as required for correction depending on the nature of the respective problems.

The concurring opinion by Justice SUDO Masahiko is as follows.
I am in agreement with the majority opinion in that it declares that the rule of reserving one seat per prefecture, by the time of the Election at the latest, had become contrary to the constitutional requirement of equality in the value of votes, and also in agreement with the majority opinion in that it acknowledges constitutionality of the provisions of the Public Offices Election Act concerning election campaigns to be carried out by political parties submitting candidates. Still, I would like to give my supplementary comments on the following one point regarding the relationship between consideration given to less populated prefectures and equality in the value of votes in the House of Representatives, and also give my supplementary comments on the following two points, from the perspective of the election system based on the single-seat constituency system, regarding why I find the provisions of the Public Offices Election Act concerning election campaigns to be carried out by political parties submitting candidates to be constitutional, respectively.
1. The right to vote is the right of the people, with whom the sovereign power resides, to participate in the political process, and in this sense, it is the most fundamental and important right of the people. For this reason, equality in the value of votes is strongly required under the principle of equality under law, as provided in Article 14, paragraph (1) of the Constitution. However, this is not the absolute criterion, and it cannot be helped even when a gap might be created in terms of the value of votes, insomuch as such gap is justified as a result of the Diet’s exercise of its discretion in connection with other reasons. This reasoning has been indicated by this court in the precedent cases. The Constitution adopts the parliamentary cabinet system, wherein the cabinet has its basis on the confidence placed by the House of Representatives, and ultimately, the cabinet which is to govern the country (the government) is composed of the majority group of members of the House of Representatives. At the same time, the cabinet is authorized to seek the judgment of the people by exercising its right to dissolve the House of Representatives (Articles 67 and 69 of the Constitution). Under such mechanism, every one vote cast in an election of members of the House of Representatives will have influence on the choice of the government and the decision of policies, and this can be particularly noticeable under the election system that adopts the single-seat constituency system. Assuming so, from the standpoint of ensuring that the interests and opinions of the people will be reflected fairly in the administration of national politics, particularly strict equality is required for the value of votes in an election of members of the House of Representatives. Any system that would intentionally create a gap in such value is contrary to the constitutional requirement of equality in the value of vote, unless there is any special reasonable ground to do so.
Now, I see the issue of this case from this viewpoint. The rule of reserving one seat per prefecture is a rule of apportioning more seats to relatively less populated prefectures by reserving one seat for each prefecture, creating a gap in the value of votes beforehand. The purpose and objective of this rule is, as it is explained, to ensure that the opinions of people living in less populated prefectures would be reflected fully in national politics. Amplifying the meaning of such explanation while taking into account the discussions at the time of the legislation, the rule was intended to ensure that national politics would be administered with emphasis placed on measures to cope with problems relating to depopulation in relatively less populated prefectures. It is an urgent, priority challenge indeed for this country to take effective and appropriate measures to provide support and improve the conditions for small cities, etc. in relatively less populated prefectures, so as to ensure that their economies would be vitalized and that plenty of jobs would be secured to the extent that the outflow or decrease of their population would be stopped. In particular, as the voices of the minority are apt to be thought lightly of or ignored, it is critically important to try to fully listen to such voices. What is more, candidates from less populated prefectures presumably have more opportunities to know the realities of the people in the respective areas through their election campaigns as well as political activities that they carry out on a daily basis. However, this way of seeing things gives superiority to the value of votes cast by voters in the target group or population related to high-priority policy issues in the administration of national politics (hereinafter referred to as the “related group”), and it should inevitably be judged to be unreasonable in the following two meanings.
First, each Diet member is not a person who speaks on behalf of a particular region or a particular group of people, but a representative of all the people (Article 43, paragraph (1) of the Constitution). The way of seeing things mentioned above signifies a view that the task to deal with high-priority policy issues largely depends on members elected by the related group, or that members elected by the related group are representatives of the interest of the group. It is unreasonable to give superiority to the value of votes cast by voters in less populated prefectures according to such way of seeing things. Secondly, there may be a large number of policy issues that are important or high in priority for our country, and that are related to the minority or the vulnerable. The aforementioned way of seeing things might lead to the conclusion that, for each such important policy issue, it is necessary to ensure that the wills of the people who belong to the relevant related group will be fully reflected, and to this end, an additional seat should be reserved for each such related group. Needless to say, such an arrangement is practically impossible, and if it were to be attempted, it would result in always giving preference only to such measures to cope with problems relating to depopulation in relatively less populated prefectures and always giving superiority to the value of votes cast by voters in the related groups. This would be unfair and unreasonable.
Viewed from the perspectives described above, the rule of reserving one seat per prefecture cannot be justified as being reasonable. I would say that this does not fall under the aforementioned case where it cannot be helped even when a gap might be created in terms of the value of votes, all the more so when taking into consideration the particularly strict requirement of equality in the value of votes in an election of members of the House of Representatives. Furthermore, as stated in the majority opinion, the rule of reserving one seat per prefecture was considered to be reasonable for a limited period of time, from the perspective of securing stability and continuity in the situation where a drastic reform was attempted for the first time after the war in relation to the election system for members of the House of Representatives, but now that a considerable period of time has passed since then, the rule is no longer reasonable. In consequence, I should say that at the time of the Election, there was no special reasonable ground to create a gap in the value of votes, and therefore the rule of reserving one seat per prefecture, by that time, had become contrary to the constitutional requirement of equality in the value of votes.

2. Under the Constitution, which sets the sovereignty of the people as its fundamental principle, within the framework of representative democracy, persons elected in an election as representatives of the people shall be the members of the Diet who are in charge of formulating the people’s political wills (making decisions on national politics) (the preamble and Article 43 of the Constitution). The process of formulating the people’s political wills (making decisions on national politics) is basically carried out in a policy-oriented and party-centered manner, or more specifically, by Diet members who are affiliated with a political party or group consisting of an aggregate of persons who share the same or similar political opinions, and through the debate and deliberation aimed at ensuring that a policy developed by such political party or group will become the will of the Diet as a whole, as well as through the voting performed (ultimately by the majority) as the outcome of such debate and deliberation. If so, it may be natural to make an election system, which is the means of electing and determining such members, also policy-oriented and party-centered, and it may also be reasonable to do so because such approach will be conducive to allowing parliamentary democracy to fulfill its original function and be in line with the spirit of the Constitution.
Determining the design of an election system is left to the choice of the people, or actually, to the broad legislative discretion of the Diet. The existing election system for members of the House of Representatives is mainly based on the single-seat constituency system, and in this respect, it can be regarded as a policy-oriented and party-centered election system. Within the framework of this election system based on the single-seat constituency system, only one member is elected from each constituency. As a result, candidates affiliated with political parties that are considered to have shown a certain performance and the capability of carrying out continuous activities will tend to be elected. This will make it easy to realize a Diet composed of one majority party or two major parties, increasing the possibility of a change of government, while also securing the continuity and stability with such a change of government taking place within the majority party or between the major parties. When we understand the purpose and objective of the single-seat constituency system as described above, we can say that this system is based on the presupposition that political parties that are considered to have shown a certain performance and the capability of carrying out continuous activities should take the lead in the debate and deliberation at the Diet. If we put weight on this point of view, we would be able to justify the argument that political parties that satisfy certain requirements, which prove their performance and capability of carrying out continuous activities, should be allowed to carry out election campaigns separately from individual candidates, so as to provide voters with sufficient references for making decisions for voting, such as the political parties’ policy lines and information on the candidates affiliated with the parties, only as part of or along the line with said point of view and to the extent that the treatment of those political parties would not be unreasonably harmful to equality between candidates. As we all know, diversity is the lifeline of democratic society, and freedom of expression of those affiliated with small political parties or with no party or group must not be violated, and opinions of the minority must not be ignored. Yet, the aforementioned point of view is, in some regards, in conformity with the constitutional doctrine of enabling parliamentary democracy to fulfill its function, and although there may be pros and cons, it seems to be valid as a point of view that is reasonable to some extent.
Even where we take this point of view, we would still find that the Diet also has legislative discretion in determining the requirements for such political parties or groups that are allowed to carry out election campaigns or the specific scope of election campaigns, only to the extent that the treatment of those political parties or groups would not be unreasonably harmful to equality between candidates. After all, the crux of the problem of this case is whether or not the difference in relation to election campaigns is unequal beyond the bounds of the Diet’s discretion.
Now, I examine the difference in relation to election campaigns in this case under the existing Public Offices Election Act from the standpoint mentioned above. Article 86, paragraph (1) of said Act provides for the requirements for a political party submitting candidates, and Article 141, paragraph (2), Article 142, paragraph (2), Article 149, paragraph (1), Article 150, paragraph (1), Article 161, paragraph (1), etc. of said Act provide for election campaigns to be carried out by political parties submitting candidates. The difference in treatment in relation to election campaigns between candidates who are affiliated with political parties submitting candidates and other candidates is not small, and it might be possible to set the requirements for a political party submitting candidates in a more flexible form. However, because I find that it may be a valid point of view to consider that it is permissible to allow political parties that satisfy certain requirements (political parties submitting candidates) to carry out election campaigns separately from individual candidates, I should take this presupposition seriously. In addition, considering that candidates who are affiliated with political parties or groups other than political parties submitting candidates are also allowed to carry out election campaigns and there seems to not be any particular insufficiency in the available information on the qualifications, political opinions, and other features of those candidates, which will be used as references for making voting decisions, and that political parties or groups other than political parties submitting candidates would not be subject to any restriction on their political activities, nor would they face any particular difficulties when they carry out political activities, aiming to gain more support and finally enable a certain number of candidates to win in an election, I cannot go so far as to declare that the treatment of political parties submitting candidates is unreasonably harmful to equality between candidates. In view of the fact that the legislature has a broad discretion in designing an election system, as mentioned above, the provisions of the Public Offices Election Act which create the difference in relation to election campaigns disputed in this case do not go beyond the limit of the Diet’s reasonable discretion, and therefore these provisions are still not unconstitutional.

The opinion by Justice FURUTA Yuki is as follows.
I am in agreement with the majority opinion in terms of its conclusion, but I disagree with the majority opinion because I consider that the Demarcation of Constituencies, by the time of the Election, had not become contrary to the constitutional requirement of equality in the value of votes. I will explain the reasons for my opinion. The precedents of this court cited below are identical to those cited in the majority opinion. I basically indicate only the dates of judgments of the respective cases.
1. My basic point of view on the issue of “disparity in the value of one vote” in an election of members of the House of Representatives under the single-seat constituency system was stated in my concurring opinion attached to the judgment of the Grand Bench of the Supreme Court of June 13, 2007. Here, I will explain the following points.
Needless to say, even where the “disparity in the value of one vote” between constituencies is 1:2, each voter is to cast only one vote, not two votes or half a vote, and to elect only one member. The “disparity in the value of one vote” substantially refers to the difference in the influence that each voter has when electing one member in the respective constituencies. In my opinion, considering that an election is not completed by a vote cast by only one voter but it is intended to elect a specific representative by means of an accumulation of votes cast by as many as several tens of thousands of people, the issue of the “disparity in the value of one vote” is, in effect, not derived from the difference in the influence of each one of those voters, but it is found in the situation where, for example, supposing the base number of voters (the total number of voters divided by the number of seats for members to be elected from single-seat constituencies; the same shall apply hereinafter) is 300,000, one member can be elected by 200,000 voters in a certain constituency, whereas 400,000 voters are necessary to elect one member in another constituency. In short, it is an issue of representatives with excessive influence or representatives with too low influence, caused by the disparity with the base number of voters (the rate of the number of voters in the relevant constituency to the base number of voters). In this respect, I agree with the opinion by Justice OKAHARA and three other justices, attached to the judgment of the Grand Bench of the Supreme Court of April 14, 1976.

2. Next, reviewing the rulings of this court in the precedent cases concerning the relationship between equality in the value of votes and the apportionment of seats to depopulated areas, at the time when the medium-sized multi-seat constituency system was in operation, this court held as follows: “where rapid social changes occur or concentration of population into urban areas takes place as a phenomenon resulting from such changes, the issue of how to assess these phenomena and how to reflect them in the demarcation of constituencies and the apportionment of seats, while taking into consideration the necessity of maintaining political stability, is one of the highly political factors that the Diet is authorized to take into consideration” (the judgment of the Grand Bench of the Supreme Court of April 14, 1976). With regard to the existing election system, this court has taken a similar stance, holding that, “the issue of how to address phenomena such as the concentration of population in urban areas and the depopulation of the areas from which people migrate to urban areas, and how to reflect these problems in the demarcation of constituencies and the apportionment of seats, is the factor that the Diet is authorized to take into consideration” (the judgment of the Grand Bench of the Supreme Court of November 10, 1999 [1999 (Gyo-Tsu) No. 7], the judgment of the Grand Bench of the Supreme Court of June 13, 2007). These holdings of this court addressed the arguments that challenged the disparity in the value of votes between urban areas and rural areas, and through these holdings, the court clearly pointed out that, in the situation where population is concentrated in urban areas, while depopulation is seen in rural areas, the Diet does not always have to apportion seats strictly in proportion to population, but it is permitted, to some extent, to determine the number of seats to be apportioned to each area, giving consideration to the balance between urban areas and rural areas so that the number of seats in rural areas will not be decreased significantly.

3. The point of view indicated in the precedent judgments is sufficiently reasonable from the perspective of pursuing an ideal composition of the Diet which is the governing entity. The Diet is the most fundamental decision-making organ of the state. In order to maintain the state and achieve its development while preserving the appropriate equilibrium within the nation as a whole, it is critically important that the awareness of problems posed and opinions heard from the respective regions that form the nation will be reflected effectively and properly. I do not deny that, under the single-seat constituency system, which subdivides the whole area of the nation into a number of constituencies, each constituency is not very independent or unique, so the principle of apportionment in proportion to population should be more strictly followed. However, if this principle is applied as it is, densely-populated areas would get more seats, whereas depopulated areas would get less. In such situation, it is justified as an appropriate political action to take into consideration the importance of effectively and properly reflecting said awareness of problems and opinions, and increase the number of seats to be apportioned to the areas which could have received noticeably less seats, without considerably distorting the normal distribution ratio in proportion to population, thereby keeping the balance between densely-populated areas and depopulated areas.
This court has acknowledged the constitutionality of the rule of reserving one seat per prefecture, regarding it as an issue within the scope of the Diet’s discretion which pertains to “how to address phenomena such as the concentration of population in urban areas and the depopulation of the areas from which people migrate to urban areas, and how to reflect these problems in the demarcation of constituencies and the apportionment of seats.” I can find no reason to modify this conclusion.
How to determine the apportionment of seats is not an individual solution to the issue of depopulation, but is a question as to how to decide the composition of the Diet, which is the forum to discuss, consider and resolve said issue and other issues facing the nation as a whole. As clearly stated in the aforementioned judgment of the Grand Bench of the Supreme Court of November 10, 1999, this is not contradictory to the status of each Diet member as a representative of all the people or the rule of reserving one seat per prefecture. How a representative of all the people should act is not specifically or definitely clear, and if we consider this point in terms of a code of conduct for Diet members, we would only reach an idealistic theory. If someone argues that it is not necessary but rather unreasonable to give consideration to the apportionment of seats as described above just because each Diet member is to represent all the people, such an argument would overestimate the status of “being representative of all the people” beyond its meaning, without any specific or substantial grounds for justifying such overestimate.
Furthermore, it is not that the rule of reserving one seat per prefecture had been considered since the time of its establishment as reasonable only for a limited period of time. According to the explanation given by the Prime Minister and the competent minister during the deliberation at the Diet, the rule itself was basically considered to be necessary. Even if the rule of reserving one seat per prefecture is likely to be modified over time, it is unacceptable to consider that the election system, which is a basic matter pertaining to the composition of the Diet?the most fundamental organ of the state?would cease to be reasonable without any clear or specific changes in the situation. At the time of the Election, in Kochi Prefecture which included the constituency with the smallest number of voters in the country, the disparity with the base number of voters was less than 0.63 in all constituencies, and when viewed from the validity of the single-seat constituency system, the existence of such disparity itself is somewhat problematic. However, such disparity was not seen in many prefectures, and it has not spread without limit even under the rule of reserving one seat per prefecture. Supposing, at the time of the Election, seats had been re-apportioned under the provisions of law currently in effect, in Kochi Prefecture, the number of seats would have been two (decrease by one) and the disparity with the base number of voters would have increased to 0.93, whereas in Tokyo Metropolis, the number of seats would have been 27 (increase by two), and the disparity would have been 1.13. In Chiba Prefecture which included the constituency with the largest number of voters in the country, the disparity with the base number of voters would have been 1:12. Thus, in reality, the time lag in the re-apportionment of seats or the specific demarcation of constituencies in each prefecture has a considerable influence on the disparity.
In addition, looking at the disparity between constituencies criticized in this case, it is smaller than the level that this court has found constitutional under the existing election system. Also from this perspective, I cannot declare that the Demarcation of Constituencies is not in conformity to the Constitution.

The dissenting opinion by Justice TAHARA Mutsuo is as follows.
I find that, among the provisions of the Public Offices Election Act that were applicable to the Election, both the provisions on the demarcation of constituencies and the provisions on election campaigns in an election in single-seat constituencies are in violation of Article 14, paragraph (1) of the Constitution, and that said provisions on election campaigns are also in violation of Article 15, paragraph (3), the proviso to Article 44, and Article 47 of the Constitution. However, in consideration of the fact that, since the drastic revision was made to the Public Offices Election Act in 1994, this court has maintained its stance to find constitutionality in said Act as revised, I consider that this court should only state that the Election is illegal.
I will explain my opinion separately on the respective issues.
I. Provisions on Demarcation
The majority opinion holds that the part of the Provisions on Criteria for Demarcation which pertains to the rule of reserving one seat per prefecture, at the time of the Election at the latest, was incompatible with equality in the value of votes, and by that time, said part itself had become contrary to the constitutional requirement of equality in the value of votes. I have no objection to this conclusion. However, for the reasons shown below, I consider that the rule of reserving one seat per prefecture had been unconstitutional since its establishment.
On the other hand, I cannot agree with the majority opinion for its holdings that it cannot be concluded that no correction had been made within a reasonable period of time as required by the Constitution only because, by the time when the Election was held, the rule of reserving one seat per prefecture, which is included in the Criteria for Demarcation, had not been abolished, nor had the Provisions on Demarcation, premised on this rule, been corrected. The Diet had the duty to, by the time of the Election, abolish the rule of reserving one seat per prefecture and continuously revise the demarcation under Article 3, paragraph (1) of the Act for Establishment of the Demarcation Council, which provides for the basic principles for demarcating single-seat constituencies for members of the House of Representatives. Yet, even after the general election was held in 2005, the Diet has spent time aimlessly, without paying attention to such duty that it should assume, and therefore it cannot avoid being accused for its inaction in legislation.
In conclusion, the Election is illegal because it was held under the provisions on the demarcation of constituencies, including the rule of reserving one seat per prefecture, that is in violation of Article 14 of the Constitution, and it should therefore be judged to be invalid.
1. Equality in the value of votes
The Constitution expressly declares that sovereignty resides in the people, and gives the Diet, which consists of elected members, representative of all the people, the status of the highest organ of state power (Articles 41 and 43 of the Constitution). It goes without saying that there shall be no discrimination of the people's suffrage, or right to elect Diet members, because of race, creed, sex, social status, family origin, education, property or income (the proviso to Article 44 of the Constitution). The value of votes to be cast by individual citizens as the exercise of their suffrage must be equal in principle, and if any disparity occurs in the value of votes depending on where individual voters have their residences, such disparity cannot be accepted unless there is reasonable grounds to justify it.
For example, as long as the constituency system is used for an election of Diet members, it is inevitable that constituencies, irrespective of whether they are large, medium-sized, or single-seat constituencies, are established on the basis of certain administrative districts, such as prefectures, cities, towns, villages, or any other further sub-divided units, and in that case, it is technically impossible to set the number of voters in the respective constituencies perfectly equally in proportion to the number of persons to be elected in those constituencies.
It is left to the Diet’s reasonable discretion to decide what type of constituency system should be adopted for an election of members of the House of Representatives, and if it is decided to adopt the single-seat constituency system, what criteria should be applied for the demarcation of constituencies (Article 44 of the Constitution). When exercising its discretion, the Diet must pay the utmost attention to equality in the value of votes, and when it comes to the election system for members of the House of Representatives, the primary house whose resolution shall take precedence and which may be dissolved, equality in the value of votes is strongly required.
The Act for Establishment of the Demarcation Council provides that the Demarcation Council shall be in charge of conducting investigation and deliberation on the revision of constituencies for members of the House of Representatives to be elected from single-seat constituencies, and making recommendation to the Prime Minister when it finds it necessary. As the criterion for drafting a revision plan, Article 3, paragraph (1) of said Act provides that the ratio of population between constituencies shall not be two or more. This provision is the outcome of the exercise of the reasonable discretion vested in the Diet, and it itself is not constitutionally questionable.
The majority opinion in this judgment, as well as the precedent judgments of this court, holds as follows: “equality in the value of votes is not the absolute criterion for determining the design of an election system, but it must be realized in harmony with other policy purposes and grounds that the Diet is duly authorized to consider. Insofar as specific matters determined by the Diet are justified as a reasonable exercise of its discretion, it cannot be helped even when such determination might lead to asking for a concession to a certain extent on the part of equality in the value of votes.” However, an election of members of the House of Representatives is not an election to elect representatives of the interests of the respective constituencies but it is basically an election to elect members as representatives of all the people. Furthermore, in light of the status of the House of Representatives as the primary house as explained above, it is hard to find such “policy purposes and grounds” that could come before equality in the value of votes between constituencies under the single-seat constituency system. When the Diet, in the course of exercising its discretion, dares to “ask for a concession to a certain extent on the part of equality in the value of votes,” it is obliged to actively clarify the reasonable grounds to do so and gain the understanding of the people. Despite such obligation, the Diet has never actively clarified any reasonable grounds for asking for a concession on the part of equality in the value of votes, including the grounds for adopting the rule of reserving one seat per prefecture explained in the next section.

2. Rule of reserving one seat per prefecture
(1) Introduction
In the process of the Diet deliberation on the rule of reserving one seat per prefecture, which is provided in Article 3, paragraph (2) of the Act for Establishment of the Demarcation Council, the purpose of adopting this rule was explained as giving consideration to depopulated areas, or more specifically, consideration to the prefectures where the number of seats to be apportioned would be reduced sharply under the single-seat constituency system adopted as a result of the revision to the Public Offices Election Act in 1994, and the latter purpose can be understood as meaning mitigation of the possible drastic changes. The judgments of the Grand Bench of the Supreme Court of November 10, 1999, and the judgment of the Grand Bench of the Supreme Court of June 13, 2007, all cited by the majority opinion, acknowledged the constitutionality of the rule of reserving one seat per prefecture. On the other hand, the majority opinion in this judgment denies its constitutionality at the time of the Election, holding that the aforementioned purpose of establishing this rule is reasonable only for a limited period of time, and once a new election system has been established and put into stable operation, it is no longer reasonable.
Contrary to the majority opinion, I believe that the rule of reserving one seat per prefecture itself can never be found to be reasonable to the extent permitted by the Constitution. The reason for this view is stated in the view shared among four justices, namely, Justice FUJITA Tokiyasu, Justice IMAI Isao, and Justice NAKAGAWA Ryoji, and I, attached to the aforementioned judgment of the Grand Bench of the Supreme Court of June 13, 2007 (this view shall hereinafter be referred to as the “Four Justices’ View”). I hereby cite the Four Justices’ View, for I do not see the necessity to modify this view at the present moment. In the following, I will make some supplementary notes on this view, including the changes in the population movements that have occurred after said judgment was rendered.
(2) Unreasonableness of the rule of reserving one seat per prefecture
A. Consideration to depopulated areas
The purpose of giving consideration to depopulated areas cannot be a reasonable ground for asking for a concession on the part of equality in the value of votes, and even as a means to give consideration to depopulated areas, the demarcation of constituencies at the time of the Election under the rules of reserving one seat per prefecture is unreasonable. These points have already been explained in detail in the Four Justices’ View, but I will add a brief explanation on why this rule is unreasonable.
In 2002, based on the preliminary results of the population census conducted in 2000, the Provisions on Demarcation were revised, on the prefectural level, by taking one seat each from Hokkaido, Yamagata, Shizuoka, Shimane, and Oita, while adding one seat each to Saitama, Chiba, Kanagawa, Shiga, and Okinawa.
Looking at the prefectures subject to reduction by one seat, Yamagata, Shimane and Oita were no longer able to enjoy the benefit of the rule of reserving one seat per prefecture as they had enjoyed it before, because they were deprived of one seat each even though they experienced the progress of depopulation as compared to the results of the population census conducted in 1990, which had been used as the basis for the demarcation of constituencies in 1994. On the other hand, other prefectures where depopulation had not progressed as much as those three, such as Tokushima and Saga, enjoyed the benefit of said rule. Thus, it is evident that the purpose of giving consideration to depopulated areas has already become invalid.
B. Purpose of mitigating the possible drastic changes resulting from the revision of the election system
As a result of adopting the single-seat constituency system through the revision to the Public Offices Election Act in 1994, there was the possibility that if 300 seats were apportioned to prefectures firmly in proportion to population, the number of persons to be elected would have been reduced considerably in some prefectures.
At the Diet deliberation, it was explained that the rule of reserving one seat per prefecture was adopted as a measure to mitigate such possible drastic changes. However, to what extent it is reasonable to take such a measure to mitigate the possible drastic changes and whether or not this measure is reasonable enough for asking for a concession on the part of equality in the value of votes?these questions should inevitably be given a negative evaluation. Apart from these points, as the general election under the provisions on the demarcation of constituencies according to the rule of reserving one seat per prefecture had been held twice, in 1996 and 2000, before the legal revision in 2002, such reasonable ground for maintaining the rule of reserving one seat per prefecture as the measure to mitigate the possible drastic changes no longer existed at the time of the revision in 2002.
C. Increase of the adverse effects of maintaining the rule of reserving one seat per prefecture
As pointed out in the Four Justices’ View, when the rule of reserving one seat per prefecture is maintained, a large gap would be created as compared with the case where seats were apportioned to prefectures in proportion to population, i.e. when comparing the results of the calculation based on the population data of each prefecture indicated by the 2000 Population Census, and the number of seats actually apportioned by adopting the rule of reserving one seat per prefecture, as against the case where the number of seats is apportioned in proportion to population, the number of seats actually apportioned is insufficient in ten prefectures (among which Hokkaido and Shizuoka had been deprived of one seat upon the revision in 2002) and in excess in 15 prefectures (among which Shiga and Okinawa had been given one additional seat upon the revision in 2002).
Based on the calculation using the Basic Residential Register as of 2009, immediately prior to the Election, there were 10 prefectures in total where the actual number of seats falls short of the number of seats to be apportioned in proportion to population. Although there was no change in the total number of such prefectures, the numbers of seats in shortage increased from three to five in Tokyo, from two to three in Kanagawa, and from one to two in Saitama. On the other hand, the number of prefectures where the actual number of seats was in excess has reached 19 (the aforementioned 15 prefectures, plus Wakayama, Yamaguchi, Ehime, and Nagasaki). Thus, the adverse effects of adopting the rule of reserving one seat per prefecture have become worse.
(3) Section summary
According to the discussion shown above, the rule of reserving one seat per prefecture cannot be considered to be reasonable at all to the extent to ask for a concession on the part of equality in the value of votes, and what is more, at the time of the revision of the Public Offices Election Act in 2002, even while taking into account the legislative backgrounds, there was no ground at all for acknowledging reasonableness of the rule, and I should say that the rule was harmful to equality in the value of votes and therefore contrary to Article 14 of the Constitution. Accordingly, the Election, which was held under the Public Offices Election Act in such an unconstitutional state, cannot avoid being judged to be illegal.

3. Unconstitutionality of the Diet’s inaction in legislation in relation to the rule of reserving one seat per prefecture
In the Four Justices’ View, I stated as follows: The Grand Bench of the Supreme Court, in its judgments rendered on November 10, 1999, found constitutionality in the demarcation of constituencies established under the rule of reserving one seat per prefecture at that time, and this was followed by the judgment of the Third Petty Bench of the Supreme Court of December 18, 2001, cited by the majority opinion. Seeing such trends, it is hard to consider that the Diet’s inaction, that is, taking no measure to correct the rule of reserving one seat per prefecture but leaving it as it was until the time of the election held in 2005, went beyond the bounds of the reasonable discretion permitted to the Diet. Therefore, we, the four justices, hesitated to immediately declare said election to be illegal. In the present case, I take a step forward and state that unconstitutionality of the Diet’s inaction in legislation cannot be denied. I explain the reason for this change in my view.
The Diet, in the capacity of the highest organ of state power and the sole law-making organ of the state, has the duty to exercise its discretion and make laws as appropriate, with the aim of realizing the policy purposes that it considers to be right. When making laws, the Diet is obliged to give due consideration to the constitutionality of such laws to be made. After enacting laws, the Diet is also obliged to always check the status of achievement of the legislative purposes and review whether or not it is still necessary to maintain the relevant law after its purpose has been achieved and whether or not it is constitutional to do so, while paying close attention to the situation after the enactment, and if a question arises or is posed by a party outside the Diet as to the constitutionality of the relevant law, the Diet must voluntarily exercise its autonomous function and examine the constitutionality of the law in question.
In the aforementioned judgments of the Grand Bench of the Supreme Court of November 10, 1999, which addressed the suits to seek invalidation of the general election held on October 20, 1996, the first election that took place after revision was made to the Public Offices Election Act in 1994, five justices presented detailed dissenting opinions, arguing that the rule of reserving one seat per prefecture was contrary to the Constitution. In these opinions, in addition to the argument of unconstitutionality, the judgments pointed out facts that could give rise to a doubt about reasonableness of the rule of reserving one seat per prefecture, such as that its effectiveness as a measure to cope with depopulated areas was questionable, and that five prefectures facing the depopulation problem were unable to enjoy the benefit of said rule, whereas some prefectures were given more seats than they should have been given, i.e. four prefectures were given four each instead of three, three prefectures were given five each instead of four, and one prefecture was given six instead of five.
In the Four Justices’ View, attached to the aforementioned judgment of the Grand Bench of the Supreme Court of June 13, 2007, which addressed the suit to seek invalidation of the general election held in 2005, the justices mentioned again why the rule of reserving one seat per prefecture was unconstitutional, and pointed out that this rule was unreasonable as a means to give consideration to depopulated areas, and it was also no longer reasonable as a measure to mitigate the possible drastic changes. Another justice also attached a detailed account for finding said rule to be unconstitutional.
As pointed out by the majority opinion, it is the rule of reserving one seat per prefecture that served as the biggest factor, among the Provisions on Demarcation, which caused the situation where, as of the day of the Election, the disparity between constituencies in terms of the number of voters exceeded 1:2 in as many as 45 constituencies. As shown above, the adverse effects of this rule have been clearly explained in the minority opinions attached to the aforementioned judgments of this court, namely, the judgments of the Grand Bench of the Supreme Court of November 10, 1999, and the judgment of the Grand Bench of the Supreme Court of June 13, 2007. In addition, needless to be indicated by others, it is obvious that the role of said rule as a measure to mitigate the possible drastic changes no longer has any meaning a decade after the system revision.
Consequently, the Diet, as the highest organ of state power, should have examined the role of the rule of reserving one seat per prefecture in all aspects, including the points indicated by the minority opinions attached to the judgments of the Grand Bench of the Supreme Court mentioned above, and launched the work to revise the rule itself. Nevertheless, even after the rendition of the aforementioned judgment of the Grand Bench of the Supreme Court of June 13, 2007, the Diet has not yet even set about the task of examining the role of the rule of reserving one seat per prefecture, the biggest factor that makes the Provisions on Demarcation unreasonable, and the Diet ought to be blamed for such negligence in the position of the legislative body.
Seeing such circumstances of the case, unlike the situation at the time of the general election in 2005, due to its inaction in legislation, that is, failing even to launch the review of the rule of reserving one seat per prefecture by the time of the Election, the Diet should inevitably be deemed to have done nothing within a reasonable period of time as required by the Constitution for rectifying the situation. In conclusion, the Provisions on Demarcation based on the rule of reserving one seat per prefecture should inevitably be judged to be unconstitutional.

II. Provisions of the Public Offices Election Act concerning election campaigns for an election in single-seat constituencies
In my opinion, with regard to the Election, the difference between election campaigns allowed for candidates in an election in single-seat constituencies who were affiliated with political parties submitting candidates, and those allowed for candidates who were not affiliated any such political parties, was substantial both in quality and quantity when taking into account the content of the election campaigns that political parties submitting candidates were actually allowed to carry out on behalf of the individual candidates in single-seat constituencies who were their members. Even in light of the legislative purpose?the combined election system of single-seat constituencies and proportional representation was adopted so as to make an election system policy-oriented and party-centered, and in order to make this election system more effective, political parties submitting candidates were allowed to carry out election campaigns in an election in single-seat constituencies?, said difference cannot avoid being criticized as going beyond the bounds of reasonable difference that is permissible for such purpose. In conclusion, said difference infringes equality among persons with the right to be candidates and to be elected, and therefore violates Article 14, paragraph (1), the proviso to Article 44, and Article 47 of the Constitution, and it also impedes voters’ proper exercise of their right to vote, and therefore violates Article 14, paragraph (1), Article 15, paragraph (3), the proviso to Article 44, and Article 47 of the Constitution.
The reason for this conclusion is the same as my dissenting opinion attached to the aforementioned judgment of the Grand Bench of the Supreme Court of June 13, 2007, which addressed the suit to seek invalidation of the general election held on September 11, 2005. I hereby cite that dissenting opinion.
Adding some comments on this issue, in the Election, candidates affiliated with a certain political party that failed to satisfy the requirements of a political party stood in many single-seat constituencies, and the number of candidates affiliated with no political party or with a political party that failed to satisfy the requirements of a political party totaled 362 (32% of the total number of candidates standing in single-seat constituencies, 1,139). These candidates, as compared with those affiliated with political parties submitting candidates, were forced to carry out election campaigns in disadvantageous conditions both in terms of quality and quantity. Furthermore, also in the Election, candidates affiliated with small political parties that barely satisfied the requirements of a political party also stood in single-seat constituencies. If these political parties come to fail to satisfy the requirements of a political party even slightly, they would no longer be able to, from the next general election, broadcast their political opinions or carry out other election campaigns that they had been allowed to carry out before. For such small political parties which intend to put up candidates in more than one single-seat constituency, there would be a large gap in terms of the quality and quantity of elections campaigns that they could carry out, depending on whether or not they satisfy the requirements of a political party. Even viewed from the perspective of whether or not such gap can be justified as reasonable only because it arises from a policy-oriented and party-centered election system, I cannot help having strong doubt about its reasonableness.

III. Validity of the Election
For all I have discussed above, I consider that, among the provisions of the Public Offices Election Act, both the Provisions on Demarcation and the provisions on election campaigns for an election in single-seat constituencies are in violation of the Constitution.
The Election held under such unconstitutional provisions of the Public Offices Election Act is illegal and therefore ought to be judged to be invalid. However, considering that this court has found constitutionality in its precedent judgments until this time, when the majority opinion finally declares that the rule of reserving one seat per prefecture is contrary to the constitutional requirement of equality in the value of votes, and that there is no allegation of fact that the difference in relation to election campaigns in an election in single-seat constituencies had direct influence on the results of the election, we should, in this suit, refrain from concluding that the Election is invalid, and only state that the Election is illegal, by applying the principle of judgment in consideration of circumstances for the public interest.

The dissenting opinion by Justice MIYAKAWA Koji is as follows.
1. I partially agree with the majority opinion for its holdings that the part of the Criteria for Demarcation which pertains to the rule of reserving one seat per prefecture, at the time of the Election at the latest, was no longer reasonable as it had been at the time of legislation, and by that time, said part had become contrary to the constitutional requirement of equality in the value of votes, and that legislative measures must be taken to meet the requirement of equality in the value of votes, by abolishing the rule of reserving one seat per prefecture as quickly as possible. However, I do not agree with the majority opinion on some other points, and I think it is meaningful to clarify those points. In the section below, I will express my own opinion briefly.

2. In my opinion, the right to elect members of the House of Representatives and of the House of Councillors is the most important and fundamental right of the people in the process of realizing their sovereignty. Population is the sole base of the people’s representatives, and equality in the value of votes is a constitutional principle. Population is the starting point and the decisive criterion for apportioning seats of members of these houses. The Diet has a broad discretion in determining appropriate election systems for the House of Representatives and for the House of Councillors, in line with the goal of forming these houses with representatives of the people. When determining the demarcation of constituencies and the apportionment of seats, it must endeavor to hold the ratio of the value of votes between constituencies as close to 1:1 as possible in proportion to population. I already presented this opinion in detail in my dissenting opinion attached to the judgment of the Grand Bench of the Supreme Court of September 30, 2009 (2008 (Gyo-Tsu) No. 209, Minshu Vol. 63, No. 7, at 1520), which addressed the ordinary election of members of the House of Councillors held on September 29, 2007.
The rule of reserving one seat per prefecture was not mentioned in the eighth report of the Election System Council, released in April 1990, which recommended the introduction of the combined election system of single-seat constituencies and proportional representation. This report recommended that, when demarcating constituencies for an election in single-seat constituencies, the seats shall be apportioned to prefectures first in proportion to population, and then if the disparity between prefectures in terms of the population per member would be reduced by apportioning an additional one seat to the prefectures which are given only one seat in the first step, two seats in total would be apportioned to these prefectures. If the number of seats was set as 301 and they were apportioned by the largest remainder method based on the population census conducted in 1985, the maximum disparity was estimated as 1:1.476. Thus, the report suggested the approach of specifically demarcating constituencies by using prefectures as the primary base for the apportionment of seats, while assuming cities, towns, villages, and other administrative units, and aiming to strike balance in population, which was reasonable to some degree. However, in June 1991, the government brought forward the rule of reserving one seat per prefecture as its reform policy to the council, and requested the council to draft a plan for demarcation of constituencies according to this policy. In that month, the council submitted a demarcation plan that adopted the rule of reserving one seat per prefecture, based on which were concurrently enacted the Act for Partial Revision of the Public Offices Election Act and the Act for Establishment of the Demarcation Council in 1994 (the rule of reserving one seat per prefecture is provided in Article 3, paragraph (2) of the latter Act). The legislative purpose of adopting this rule was explained as giving consideration to depopulated areas, or more specifically, consideration to the sudden decrease in the number of seats to be apportioned to less populated prefectures, and the latter purpose can be understood as meaning mitigation of the possible drastic changes.
As a result of this revision, on the basis of the population census conducted in October 1990, at the first stage of apportioning seats to prefectures under the rule of reserving one seat per prefecture, the maximum disparity between prefectures was 1:1.822, and the maximum disparity between constituencies was 1:2.137, with the disparity exceeding 1:2 in 28 constituencies. As of the day of the Election, at the first stage of apportioning seats to prefectures under the rule of reserving one seat per prefecture, the maximum disparity between prefectures was 1:1.978, and the maximum disparity between constituencies was 1:2.304, with the number of constituencies where the disparity exceeds 1:2 reaching 45. As pointed out by the majority opinion, the rule of reserving one seat per prefecture is the major factor causing the disparity between constituencies in terms of the value of votes.

3. The majority opinion holds that consideration to relatively less populated regions is a matter that Diet members, who are required to take part in national politics as representatives of all the people, should take into account in the course of carrying out such political activities, and it can hardly be justified as being reasonable to cause inequality in the value of votes between voters in particular regions (prefectures) and those in other regions (prefectures). Although this view is appropriate, consideration to depopulated areas is a non-demographical factor, and it is different from other non-demographical and technical factors, such as administrative districts and geographical conditions, or it can even be regarded as an arbitrary factor. As I see it, putting priority on such factor as consideration to depopulated areas is obviously an unreasonable way for the Diet to exercise its discretion.
The majority opinion further holds as follows. The significance of the rule of reserving one seat per prefecture was that, if seats for Diet members were apportioned to each prefecture exclusively in proportion to population, the number of seats to be apportioned to less populated prefectures would be reduced suddenly and considerably, and therefore it was necessary to secure stability and continuity in national politics, and said rule was adopted under the circumstances where, without consideration to such necessity of securing stability and continuity, among others, the reform of the election system in itself was difficult to achieve; assuming so, the rule of reserving one seat per prefecture is reasonable only for a limited period of time. In real politics pursued toward realizing a reform, concession and compromise are unavoidable. However, I cannot agree with the stance of giving way to such consideration to the reality in the process of making a review on constitutionality. The necessity to secure stability and continuity in national politics, when viewed from the other side, means nothing but giving relief for those persons who would not be qualified as Diet members in the event that seats were apportioned to each prefecture in proportion to population. I can find nothing reasonable in such policy measure that contradicts the spirit of democratic orthodoxy. Should I find even anything reasonable in that, such reasonableness is justified only temporarily, and at the time when, following the general elections in 1996 and 2000, the provisions on demarcation were revised into the Provisions on Demarcation in July 2002 based on the recommendation made by the Demarcation Council in the previous year, said measure was no longer reasonable. The legislature, by this point in time at the latest, should have abolished the rule of reserving one seat per prefecture (Article 3, paragraph (2) of the Act for Establishment of the Demarcation Council).
Article 3, paragraph (1) of the Act for Establishment of the Demarcation Council provides that when the Demarcation Council drafts a revision plan for the demarcation of constitutions for members of the House of Representatives to be elected from single-seat constituencies, it shall aim to strike a balance among constituencies in terms of population, in accordance with the principle of ensuring that among the populations of constituencies, the number calculated by dividing the largest population by the smallest population will not be two or more, and in a reasonable manner by comprehensively taking into consideration the demarcation of administrative districts, geographical features, transportation conditions, and other circumstances. As the value of votes must be equal, the Demarcation Council should make the utmost efforts to hold the ratio of the value of votes as close to 1:1 as possible. It is not that any revision plan resulting in a ratio below 1:2 would be found to be constitutional, but even such plan must be subject to judicial review for its reasonableness. Unless it is understood in this way, the constitutionality of the provisions of Article 3, paragraph (1) of said Act would also become doubtful.

4. As I have explained above, the Provisions on Demarcation that are established by adopting the rule of reserving one seat per prefecture are unconstitutional, and therefore the Election (elections by single-seat constituency) is illegal. Consequently, by applying the principle of judgment in consideration of circumstances for the public interest, the court should dismiss the appellants’ claims, and state in the main text of the judgment that the elections held in the constituencies in question as part of the Election are illegal. The court should additionally mention that if the Diet still fails to abolish the rule of reserving one seat per prefecture or takes no legislative measure to comply with equality in the right to vote promptly, there is the possibility that in a suit to seek invalidation of an election to be filed in the future, the court will invalidate the outcome of the election.

Justice TAKESAKI Hironobu
Justice FURUTA Yuki
Justice NASU Kohei
Justice TAHARA Mutsuo
Justice MIYAKAWA Koji
Justice SAKURAI Ryuko
Justice TAKEUCHI Yukio
Justice KANETSUKI Seishi
Justice SUDO Masahiko
Justice CHIBA Katsumi
Justice YOKOTA Tomoyuki
Justice SHIRAKI Yu
Justice OKABE Kiyoko
Justice OTANI Takehiko
Justice TERADA Itsuro