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1989 (Gyo-Tsu) 167

1990.04.12
1989 (Gyo-Tsu) 167
Minshu Vol. 44, No. 3
Judgment concerning the case where an observer of absentee voting engaged in assistance in the execution of the absentee voting business concurrently while observing the absentee voting and was therefore in the state of being unable to sufficiently play his/her role as a monitoring agency, and the appropriateness of the absentee voting
Case seeking revocation of administrative determination on an application for examination on the effect of an election
Judgment of the First Petty Bench, dismissed
Fukuoka High Court, Miyazaki Branch, Judgment of September 27, 1989
Where an observer of absentee voting was in the state of being unable to sufficiently play his/her role as a monitoring agency because he/she engaged in assistance in the execution of the absentee voting business concurrently while observing the absentee voting, absentee votes cast during the time when he/she was in such state should be considered to be illegal in violation of the provisions of Article 49, paragraph (1) of the Public Offices Election Act and Article 56, paragraphs (1) and (2) of the Order for Enforcement of the Public Offices Election Act.
Article 49, paragraph (1) of the Public Offices Election Act and Article 56, paragraphs (1) and (2) of the Order for Enforcement of the Public Offices Election Act

Public Offices Election Act

Article 49, paragraph (1)

(1) Notwithstanding the provisions of the proviso to Article 42, paragraph (1) (Registration of List of Electors and Voting), Article 44 (Voting at Voting Station), Article 45 (Delivery and Form of Voting Slip), Article 46, paragraphs (1) and (2) (Entries in and Posting of Vote), and the following and preceding Articles, an elector who is unable to go to the voting station to cast a vote by him/herself on the date of an election due to the ground set forth in any one of the following items may be allowed to cast a vote at a place to write a vote, which is administered by an absentee voting administrator pursuant to the provisions of Cabinet Order:
(i) the elector should be engaging in duties or business outside the area of the voting precinct to which he/she belongs;
(ii) the elector should be traveling or staying outside the area of the municipality in which the voting precinct to which he/she belongs is located due to an unavoidable business or an accident;
(iii) the elector should have extreme difficulty in walking due to a disease, injury, pregnancy, senility or physical disability or for the reason of being in the puerperium or should be being committed to a prison, juvenile training school or women's guidance home;
(iv) the elector should be residing or staying on an island which has difficulty with transportation or any other area specified by an order or should be engaging in duties or business in such area; and
(v) the elector should be residing at an address outside the area of the electoral district of the member of the council of the prefecture which the area of the voting precinct, to which he/she belongs, falls under.


Order for Enforcement of the Public Offices Election Act

Article 56, paragraphs (1) and (2)

(1) Where an elector who received delivery of a voting slip and an envelope for voting due to the grounds set forth in the items of Article 49, paragraph (1) of the Act (excluding those set forth in the items of paragraph (2) of the preceding Article) intends to cast a vote at a municipality to which a list of electors in which he/she is registered belongs, he/she must present the voting slip and the envelope for voting to the chairperson of the Board of Elections of the municipality, who is the absentee voting administrator, during the period from the date on which the date of the election was publicly notified to the preceding day of the date of the election and receive the inspection thereof, write the name of one candidate for the election (in the election of the members of the House of Councilors under the proportional representation system, the name or abbreviated name of one political party, etc. as registered in a list of names submitted in advance under the provisions of Article 86-2, paragraph (1) of the Act; the same applies in paragraph (3)) on the voting slip by him/herself at the place to write a vote administered by the absentee voting administrator, put the voting slip in the envelope for voting and seal the envelop, affix his/her signature on the surface of the envelope for voting, and immediately submit the envelope to the absentee voting administrator.
(2) In the case referred to in the preceding paragraph, the absentee voting administrator must have a person, who holds the right to vote, observe the absentee voting.
The final appeal is dismissed.

The costs of the final appeal shall be borne by the appellants of final appeal.
Concerning Reasons I to III for a final appeal stated by the counsels for final appeal

The findings and determination of the court of prior instance regarding the counsels' arguments and measures in the examination are legitimate and can be accepted in light of the evidence indicated in the judgment in prior instance, as well as the case records, and the judgment in prior instance contains no illegality as argued by the counsels. The arguments are, in the end, only criticizing the selection of evidence and findings of facts made by the court of prior instance under its exclusive power, and thus are not acceptable.

Concerning Reasons IV and V for a final appeal stated by the same counsels for final appeal

According to Article 49, paragraph (1) of the Public Offices Election Act and Article 56, paragraphs (1) and (2) of the Order for Enforcement of the Public Offices Election Act, absentee voting is to be conducted at a place to write a vote which is administered by an absentee voting administrator, and in that case, the absentee voting administrator must have a person, who holds the right to vote, observe the voting. The observer is an agency which monitors the execution of absentee voting business, and when executing the absentee voting business, the absentee voting administrator must have one or more persons, who hold the right to vote, observe the voting in accordance with the aforementioned provisions. The Public Offices Election Act does not prohibit a member, clerk, etc. of the Board of Elections from becoming an observer of absentee voting. However, where a member, clerk, etc. of the Board of Elections who was appointed as an observer was in the state of being unable to sufficiently play the observer's role as a monitoring agency because he/she was concurrently engaging in assistance in the execution of the absentee voting business while observing the absentee voting, absentee votes cast during the time when he/she was in such state should: for that reason alone, be considered to be illegal in violation of the aforementioned provisions of the Public Offices Election Act and the Order for Enforcement of the Public Offices Election Act as votes that substantially lack an observer, taking into consideration the purpose of the same Act and the same Order for Enforcement intending to ensure the freedom and fairness of elections by providing that an observer, who is a monitoring agency, is positioned in addition to an absentee voting administrator, who is the executive agency. Then, existence of the aforementioned illegal absentee votes must be considered to be likely to cause a change to the result of the election based on the comparison of the number of votes won between the winner and the runner-up in the election of the head of the relevant local government.

When this determination is applied to this case, the facts lawfully determined by the court of prior instance are as follows: [1] In the election of the mayor of Village A in Oshima-gun, Kagoshima, conducted on June 28, 1987 (hereinafter referred to as the "Election"), candidates D and E ran against each other; as a result, the former won 737 votes while the latter won 735 votes, and D was decided to be the winner; [2] In the Election, ordinary absentee voting was conducted during the period from June 23, 1987, which was the date of public notice, to June 27, 1987; however, in the absentee voting, F, who was the chairperson of the Board of Elections of Village A, served as the absentee voting administrator and executed the absentee voting, which was conducted while setting the conference room on the second floor of the village office building of Village A as the place to write a vote (hereinafter referred to as the "Absentee Voting"), and G, H, and K, who were the members of the aforementioned Board, assisted the absentee voting business through sharing of roles; specifically, G checked persons who visited the voting station against the list of electors, H examined whether or not electors have a ground for absentee voting as stated in written oaths, and K delivered voting slips and envelopes for voting and gave explanations, etc.; [3] In the Absentee Voting, K alone was appointed as an observer and observed the absentee voting procedures as the observer at the place to write a vote, except for the time during which K went away from the same place twice during the aforementioned period, while engaging in the duties as an assistant executor of the absentee voting business, such as delivering voting slips and envelopes for voting to electors who were permitted by F to cast an absentee vote after inspection, explaining how to cast a vote, and confirming that electors have affixed their signatures on their envelopes for voting after they completed the writing of the voting slips and enclosed the voting slips in the aforementioned envelops; [4] During the time when K was away from the aforementioned place to write a vote, H alone served as an observer, and H also observed the absentee voting procedures as the observer while examining whether or not electors have a ground for absentee voting as stated in written oaths; [5] In the Absentee Voting, 68 electors cast their votes on the first day, June 23, 1987, and 158 electors cast their votes on or before the last day, June 27, 1987. According to the aforementioned facts, K, who was the observer, and H, who served as the observer during the time when K was away, must be recognized as having been in the state of being unable to sufficiently play the observer's role as a monitoring agency because they also engaged in assistance in the execution of the absentee voting business while observing the absentee voting. Therefore, 158 absentee votes cast during the period of the Absentee Voting should be considered to be illegal in violation of the provisions of Article 49, paragraph (1) of the Public Offices Election Act and Article 56, paragraphs (1) and (2) of the Order for Enforcement of the Public Offices Election Act. The aforementioned 158 votes exceed the difference in the number of votes won in the Election between the winner and the runner-up, specifically, two votes. Consequently, the aforementioned illegality is likely to cause a change to the result of the Election, and the Election must be considered to be invalid.

The determination of the court of prior instance to the same effect is legitimate and can be accepted. The judicial precedents cited in the counsels' arguments are irrelevant in this case because they addressed a different type of facts. The judgment in prior instance contains no illegality as argued by the counsels, and the counsels' arguments are not acceptable.

Accordingly, in accordance with Article 7 of the Administrative Case Litigation Act and Articles 401, 95, 89, and 93 of the Code of Civil Procedure, the Court unanimously decides as set forth in the main text.
Justice OUCHI Tsuneo

Justice TSUNODA Reijiro

Justice YOTSUYA Iwao

Justice OHORI Seiichi

Justice HASHIMOTO Shirohei
(This translation is provisional and subject to revision.)