2023.10.18

2023(Gyo-Tsu)54

Minshu Vol. 77, No. 7

(Civil Case)Judgment on the constitutionality of the provisions of Article 14 and Appended Table 3 of the Public Offices Election Act on the apportionment of seats in the House of Councillors (elected from the constituencies)

Case seeking invalidation of an election

Judgment of the Grand Bench, dismissed

Tokyo High Court, Judgment of November 14, 2022

At the time of the regular election of members of the House of Councillors held on July 10, 2022, it cannot be said that the disparity between constituencies in terms of the value of votes under the provisions of Article 14 and Appended Table 3 of the Public Offices Election Act as amended by Act No. 75 of 2018 on the apportionment of seats in the House of Councillors (elected from the constituencies) were extremely unequal to the extent the question of unconstitutionality arose, and accordingly, it cannot be said that the above provisions were in violation of Article 14, paragraph (1), etc. of the Constitution. (There are concurring and dissenting opinions.)

Article 14, paragraph (1), Article 15, paragraphs (1) and (3), Article 43, paragraph (1), and Article 44 of the Constitution, and Article 14 and Appended Table 3 of the Public Offices Election Act Public Offices Election Act (Constituencies of Members of the House of Councillors Elected from the Constituencies) Article 14 (1) The constituencies of the members of the House of Councillors (elected from the constituencies) and the number of members to be elected from each constituency shall be specified in Appended Table 3. (2) Even in the case of the abolition, creation, division, or merger of a prefecture pursuant to the provisions of Article 6-2, paragraph (1) of the Local Autonomy Act, the provisions then in force shall remain applicable with regard to the constituencies of the members of the House of Councillors (elected from the constituencies) and the number of members to be elected from each constituency. Appended Table 3 Appended Table 3 (relevant to Article 14) Constituency Number of members of House of Councillors Hokkaido 6 Aomori Prefecture 2 Iwate Prefecture 2 Miyagi Prefecture 2 Akita Prefecture 2 Yamagata Prefecture 2 Fukushima Prefecture 2 Ibaraki Prefecture 4 Tochigi Prefecture 2 Gunma Prefecture 2 Saitama Prefecture 8 Chiba Prefecture 6 Tokyo Metropolis 12 Kanagawa Prefecture 8 Niigata Prefecture 2 Toyama Prefecture 2 Ishikawa Prefecture 2 Fukui Prefecture 2 Yamanashi Prefecture 2 Nagano Prefecture 2 Gifu Prefecture 2 Shizuoka Prefecture 4 Aichi Prefecture 8 Mie Prefecture 2 Shiga Prefecture 2 Kyoto Prefecture 4 Osaka Prefecture 8 Hyogo Prefecture 6 Nara Prefecture 2 Wakayama Prefecture 2 Tottori Prefecture and Shimane Prefecture 2 Okayama Prefecture 2 Hiroshima Prefecture 4 Yamaguchi Prefecture 2 Tokushima Prefecture and Kochi Prefecture 2 Kagawa Prefecture 2 Ehime Prefecture 2 Fukuoka Prefecture 6 Saga Prefecture 2 Nagasaki Prefecture 2 Kumamoto Prefecture 2 Oita Prefecture 2 Miyazaki Prefecture 2 Kagoshima Prefecture 2 Okinawa Prefecture 2

The final appeal is dismissed. The costs of the final appeal shall be borne by the appellants of the final appeal.

Concerning the reasons for the final appeal stated by the appellant of the final appeal and the counsel for the final appeal, YAMAGUCHI Kuniaki, et al. 1. This case is a suit to seek the invalidation of an election, which was filed by the appellants who are voters in the Tokyo District and the Kanagawa District, in relation to the regular election of members of the House of Councillors held on July 10, 2022 (hereinafter referred to as the "Election"), arguing that the provisions of Article 14 and Appended Table 3 of the Public Offices Election Act on the apportionment of seats in the House of Councillors (elected from the constituencies) (such provisions since the enactment of the same Act and after every amendment thereof, shall be hereinafter, including Appended Table 2 prior to the amendment by Act No. 2 of 1994, referred to as the "Provisions on the Apportionment of Seats") are unconstitutional and thus invalid, and accordingly, the election in the aforementioned constituencies in the Election based on said provisions is also invalid. 2. The outline of the facts lawfully determined by the court of prior instance is as follows: (1) With regard to the election of members of the House of Councillors, the Act on Elections of Members of the House of Councillors (Act No. 11 of 1947) provided that 250 seats in the House of Councillors shall be divided into 100 seats for members elected from the national constituency and 150 seats for members elected from local constituencies. The Act further provided that members elected from the national constituency shall be elected from one district across all prefectures and that members elected from local constituencies shall be elected from prefecture-based constituencies as specified in the Appended Table together with the number of members of the House in each constituency. With regard to the number of members in each constituency, the Constitution (Article 46) provided that an election for half the members of the House of Councillors shall take place every three years, and accordingly, an even number of seats from two to eight were apportioned in proportion to the population in each constituency under the policy to the effect that an even number of seats, at least two, were apportioned so that an election for half the members elected from each constituency could take place. The Provisions on the Apportionment of Seats of the Public Offices Election Act enacted in 1950 follow the above provisions on the apportionment of seats of the Act on the Election of Members of the House of Councillors. The above Provisions on the Apportionment of Seats had not been amended thereafter until the amendment to the Public Offices Election Act by Act No. 47 of 1994 (hereinafter referred to as the "Amendment of 1994"), other than the addition of two seats for the Okinawa electoral district. Due to the amendment to the Public Offices Election Act by Act No. 81 of 1982, it was provided that 252 seats in the House of Councillors shall be divided into 100 seats for members elected through proportional representation who are elected in proportion to votes for each political party or the like, and 152 seats for members elected from the constituencies who are elected in each prefectural constituency. These members elected from the constituencies were previously referred to as members elected from local constituencies. Thereafter, due to the amendment to the Public Offices Election Act by Act No. 118 of 2000 (hereinafter referred to as the "Amendment of 2000"), it was provided that the total number of seats in the House of Councillors shall be 242 with 96 seats for members elected through proportional representation and 146 seats for members elected from the constituencies. (2) At the time of the enactment of the Act on the Election of Members of the House of Councillors, the maximum disparity between constituencies in terms of population per member of the House (hereinafter, when referring to the "maximum disparity between constituencies" at each time of legislation, such maximum disparity in terms of population shall be referred to) was 2.62 to 1 (hereinafter, all figures concerning disparities are approximate). However, this disparity continued to widen gradually due to population changes, and at the time of the regular election of members of the House of Councillors in 1992 (hereinafter, the regular election of members of the House of Councillors will be simply referred to as the "regular election"), the maximum disparity between constituencies in terms of the number of voters per member of the House (hereinafter, when referring to the "maximum disparity between constituencies" at each time of election, such maximum disparity in terms of the number of voters shall be referred to) reached 6.59 to 1, and then, due to measures taken in the Amendment of 1994 to the effect that seats for 7 constituencies were increased or decreased by 8, the maximum disparity between constituencies in terms of population based on the result of the population census carried out in October 1990 decreased to 4.81 to 1. Thereafter, the maximum disparity between constituencies at each time of regular election during the period from 1995 to 2007 was approximately 5 to 1, during which measures were taken in the Amendment of 2000 to the effect that seats for 3 constituencies were decreased by 6 and measures were taken in the amendment to the Public Offices Election Act by Act No. 52 of 2006 to the effect that seats for 4 constituencies were increased or decreased by 4. However, with regard to the constitutionality of the Provisions on the Apportionment of Seats, the Grand Bench of the Court held that at the regular election held in 1992, the value of votes was extremely unequal to the extent the question of unconstitutionality arose (1994(Gyo-Tsu)59, judgment of the Grand Bench of the Supreme Court of September 11, 1996, Minshu Vol. 50, No. 8, at 2283), but held that at the two regular elections held under the Provisions on the Apportionment of Seats after the Amendment of 1994, it could not be said that the above inequality had been reached (1997(Gyo-Tsu)104, judgment of the Grand Bench of the Supreme Court of September 2, 1998, Minshu Vol. 52, No. 6, at 1373, and 1999(Gyo-Tsu)241, judgment of the Grand Bench of the Supreme Court of September 6, 2000, Minshu Vol. 54, No. 7, at 1997). Thereafter, with regard to the two regular elections held under the Provisions on the Apportionment of Seats after the Amendment of 2000, as well as the regular election held in 2007 under the Provisions on the Apportionment of Seats after the amendment to the Public Offices Election Act by Act No. 52 of 2006, the Grand Bench of the Court determined that in conclusion, it could not be said that those Provisions on the Apportionment of Seats had been in violation of the Constitution (2003(Gyo-Tsu)24, judgment of the Grand Bench of the Supreme Court of January 14, 2004, Minshu Vol. 58, No. 1, at 56, 2005(Gyo-Tsu)247, judgment of the Grand Bench of the Supreme Court of October 4, 2006, Minshu Vol. 60, No. 8, at 2696, and 2008(Gyo-Tsu)209, judgment of the Grand Bench of the Supreme Court of September 30, 2009, Minshu Vol. 63, No. 7, at 1520). However, in the above judgment of the Grand Bench of the Supreme Court of October 4, 2006, it was pointed out that it was desired that persistent efforts be made at the Diet for the rectification of the inequality in the value of votes taking into consideration the importance of equality in such value, and in the above judgment of the Grand Bench of the Supreme Court of September 30, 2009, it was also pointed out that it was required that the current election system itself be reviewed to significantly reduce the maximum disparity which was still extremely unequal at that time from the perspective of equality in the value of votes. This means that while the maximum disparity between constituencies was continuously at approximately 5 to 1, the Court had come to make substantially more rigorous evaluations with regard to the disparity from the perspective of equality in the value of votes. (3) With regard to the regular election held on July 11, 2010, with the maximum disparity between constituencies at 5.00 to 1, 2011(Gyo-Tsu)51, judgment of the Grand Bench of the Supreme Court of October 17, 2012, Minshu Vol. 66, No. 10, at 3357 (hereinafter referred to as the "2012 Grand Bench Judgment") held that in conclusion, it could not be said that the Provisions on the Apportionment of Seats at the time of that election had been in violation of the Constitution. However, as systems and social conditions changed over the years, given that (i) the election systems for members of the House of Councillors and for members of the House of Representatives were becoming more homogeneous, and under rapidly changing social conditions, the role of the House of Councillors in the management of state affairs was becoming more substantial than ever in the context of the longer term of office for members of that House; and that (ii) the criteria for demarcation was established for the House of Representatives to the effect that the disparity between constituencies in terms of population was less than 2 to 1, in principle, as systematic consideration for the demand for equality in the value of votes, the judgment stated that it was difficult to find reason for which the demand for equality in the value of votes would be allowed to be relaxed just because it was the election of members of the House of Councillors, that circumstances such as where a prefecture could be regarded as a politically unified unit were no longer sufficient reasons for which this sizable disparity in terms of the value of votes which had continued over several decades was justified, and that it became extremely difficult to respond to the demand for equality in the value of votes while maintaining prefectural constituencies under the circumstances where disparities between prefectures in terms of population continued to widen and there were constraints on the adoption of the method of increasing the total number of seats. The judgment then held that the disparity in terms of the value of votes as shown by the maximum disparity between constituencies at the time of the above regular election was extremely unequal to the extent the question of unconstitutionality arose, and pointed out that it was necessary to eliminate the above inequality as soon as possible by taking legislative measures that contained a review of the current election system itself, such as changing the current method of allotting seats for each prefectural constituency in an appropriate manner. (4) After rendering the 2012 Grand Bench Judgment, the Act Partially Amending the Public Offices Election Act (Act No. 94 of 2012; hereinafter referred to as the "2012 Amendment Act") was enacted on November 16, 2012, and came into effect on November 26, 2012. The same Act contained provisions on the increase or decrease in seats by 4 for 4 constituencies for members elected from the constituencies. (5) On July 21, 2013, a regular election was held under the Provisions on the Apportionment of Seats as amended by the 2012 Amendment Act (hereinafter referred to as the "2013 Election"). The maximum disparity between constituencies at the time of that election was 4.77 to 1. 2014(Gyo-Tsu)155 and 156, judgment of the Grand Bench of the Supreme Court of November 26, 2014, Minshu Vol. 68, No. 9, at 1363 (hereinafter referred to as the "2014 Grand Bench Judgment") held that in conclusion, it could not be said that the Provisions on the Apportionment of Seats at the time of the 2013 Election had been in violation of the Constitution. However, in line with the determination of the 2012 Grand Bench Judgment, the judgment held that the above measures of an increase or decrease by 4 in the 2012 Amendment Act were taken solely to increase or decrease seats in some constituencies while maintaining the election system based on prefectural constituencies, and since the maximum disparity between constituencies actually continued to be approximately 5 to 1 before and after the above amendment, the disparity between constituencies in terms of the value of votes was extremely unequal to the extent the question of unconstitutionality arose even after the above measures had been implemented by the same Act. The judgment then pointed out that it was necessary to constantly consider and summarize specific draft amendments, such as changing the current method of allotting seats for each prefectural constituency in an appropriate manner, and eliminate the above inequality as soon as possible by taking legislative measures containing a review of the current election system itself. (6) The Act Partially Amending the Public Offices Election Act (Act No. 60 of 2015; hereinafter referred to as the "2015 Amendment Act") was enacted on July 28, 2015, and came into effect on November 5, 2015. As a result of the amendment to the Public Offices Election Act by the same Act (hereinafter referred to as the "Amendment of 2015"), the maximum disparity between constituencies in terms of population based on the result of the population census carried out in October 2010 became 2.97 to 1. The 2015 Amendment Act contained provisions on constituencies and seats for members elected from the constituencies to the effect that Tottori Prefecture and Shimane Prefecture, as well as Tokushima Prefecture and Kochi Prefecture, were each merged into one constituency with 2 seats, and seats in 3 constituencies were decreased by 2, while seats in 5 constituencies were increased by 2. Article 7 of the Supplementary Provisions of that Act provided that a fundamental review of the election system shall be continuously considered for the regular election to be held in 2019 while taking into consideration matters including the rectification of the disparity between constituencies in terms of population per member based on how the House of Councillors should be, and a conclusion shall be reached without fail. (7) On July 10, 2016, a regular election was held under the Provisions on the Apportionment of Seats after the Amendment of 2015 (hereinafter referred to as the "2016 Election"). The maximum disparity between constituencies at the time of that election was 3.08 to 1. 2017(Gyo-Tsu)47, judgment of the Grand Bench of the Supreme Court of September 27, 2017, Minshu Vol. 71, No. 7, at 1139 (hereinafter referred to as the "2017 Grand Bench Judgment") held that the 2015 Amendment Act contained provisions not only on the increase or decrease in seats for some constituencies but also on the review of the election system based on prefectural constituencies, which was a factor in the sizable disparity in terms of the value of votes that continued over a long period, by merging constituencies for the first time since the establishment of the House of Councillors. The judgment stated that by these measures the maximum disparity between constituencies, which had been approximately 5 to 1 over several decades, was reduced to 2.97 to 1 (3.08 to 1 at the time of the election), and accordingly, it could be deemed as attempts made to rectify the disparity in line with the purport of the 2012 Grand Bench Judgment, etc. The judgment then stated that since there were the provisions in the Supplementary Provisions as explained in the above (6), it could be said that the direction and resolution of the legislature for further rectifying the disparity in the future were shown, and consideration was given to avoid recreating a sizable disparity, and it could not be said that the disparity between constituencies in terms of the value of votes under the Provisions on the Apportionment of Seats at the time of the 2016 Election was extremely unequal to the extent the question of unconstitutionality arose. (8) In the 2016 Election, in three prefectures out of the four subject to constituency merger excluding Shimane Prefecture, voter turnout decreased to a record-low at that time. In addition, the rate of invalid votes in each of the three prefectures was above the national average with Kochi Prefecture having the highest. In the 2013 Election, a rate of invalid votes above the national average was recorded only in Kochi Prefecture among the above four prefectures. On July 29, 2016, the National Governors' Association adopted a resolution to seek the immediate cancellation of constituency merger, stating that various negative effects, including an extreme decline in voter turnout, had emerged in the 2016 Election. Other organizations including the National Association of Chairpersons of Prefectural Assemblies and the Japan Association of City Mayors also adopted resolutions or took other measures to immediately cancel constituency merger. In February 2017, the House of Councillors Reform Council, consisting of the respective representatives of the factions in the House of Councillors, was established, and in April 2017, the "Advisory Committee for the Election System," for the purpose of conducting an intensive investigation into the reform of the election system for the House of Councillors, was established under the same Council. With regard to the reform of the election system for the House of Councillors, the same committee had a consultation on disparity in terms of the value of one vote, the framework of the election system, and how seats should be apportioned based on that framework, the framework of constituencies, etc., and then considered changing constituencies for members elected from the constituencies, to prefectural constituencies under which from each prefecture at least one member would be elected, to prefectural constituencies including some merged constituencies, or to constituencies based on wider areas instead of prefectures. In addition, the committee also had discussions about how the election system should be run, including the case that a system would not be adopted under which there were members elected from the constituencies and members elected through proportional representation. However, opinions about the specific direction of election system reform expressed by the factions after these discussions contained vast differences in terms of the unit of constituency, maintenance or abolition of constituency merger, increases or decreases in seats, etc. At a meeting of the House of Councillors Reform Council in June 2018, the Liberal Democratic Party presented its proposal that, while maintaining prefectural constituencies and two merged constituencies of four prefectures by the Amendment of 2015, seats for members elected from the constituencies would be increased by two and such two seats would be apportioned to the Saitama District, and in addition, seats for members elected through proportional representation would be increased by four, and a specific frame system under which political parties were allowed to appoint candidates to be elected preferentially would be introduced. Although consultations were held thereafter, there were differences in opinion among the factions. Each faction thus submitted a bill to the House of Councillors, and it was arranged that discussions would be advanced at meetings of the House of Councillors Special Committee for the Establishment of Political Ethics and the Election System. In addition to a bill in line with the above proposal by the Liberal Democratic Party, bills including a bill containing the introduction of an election system with wider constituencies in lieu of the current election system with members elected from the constituencies and members elected through proportional representation were submitted. At the meeting of the above special committee on July 11, 2018, it was determined that the bill partially amending the Public Offices Election Act, which was in line with the above proposal by the Liberal Democratic Party, should be passed, and at that time, a supplementary resolution was adopted to the effect that "the reform of the election system for the House of Councillors in the future should be continuously considered in accordance with the purport of the Constitution, based on the role of the House of Councillors and how the House should be." The Act as per the above bill (Act No. 75 of 2018; hereinafter referred to as the "2018 Amendment Act") was enacted on July 18, 2018, and came into effect on October 25, 2018 (hereinafter, the Provisions on the Apportionment of Seats as amended by the same Act shall be referred to as the "Provisions on the Apportionment of Seats in this Case"). As a result of the amendment to the Public Offices Election Act by the same Act (hereinafter referred to as the "Amendment of 2018"), the maximum disparity between constituencies in terms of Japanese national population based on the result of the population census carried out in October 2015 became 2.99 to 1. (9) On July 21, 2019, a regular election was held for the first time under the Provisions on the Apportionment of Seats in this Case (hereinafter referred to as the "2019 Election"). The maximum disparity between constituencies at the time of that election was 3.00 to 1. 2020(Gyo-Tsu)78, judgment of the Grand Bench of the Supreme Court of November 18, 2020, Minshu Vol. 74, No. 8, at 2111 (hereinafter referred to as the "2020 Grand Bench Judgment") held that while it was required that the legislature, in the situation where constant population changes were expected in the future, discuss, and continue efforts at, measures required to further rectify the disparity and to maintain the rectified disparity without allowing it to widen again, it could not be said that these efforts were making great progress with the Amendment of 2018. However, the judgment stated that, given that it could be said that the 2018 Amendment Act gave consideration so as to maintain the direction of the 2015 Amendment Act that had reduced the maximum disparity that had been approximately 5 to 1 over several decades to around 3 to 1, and that the reform of the election system for the House of Councillors would inevitably be gradually realized because by nature it requires careful consideration, it could not be concluded that the positive attitude towards the rectification of the disparity had been lost in the course of consideration by the legislature. The judgment then held that it could not be said that the disparity between constituencies in terms of the value of votes under the Provisions on the Apportionment of Seats in this Case at the time of the 2019 Election was extremely unequal to the extent the question of unconstitutionality arose. (10) In the 2019 Election, voter turnout in Tokushima Prefecture, which was subject to constituency merger, was the lowest in the nation, and turnout in Tottori and Shimane Prefectures also hit record lows. The rate of invalid votes in each of the four prefectures that were subject to constituency merger was above the national average, and in Tokushima Prefecture, it was the highest in the nation. Since the 2019 Election, organizations including the National Governors' Association have adopted resolutions to seek the cancellation of constituency merger. In May 2021, the House of Councillors Reform Council, consisting of the respective representatives of the factions in the House of Councillors, was established anew, and reform of the election system, including the rectification of disparity, was discussed as one of the items under consideration for the reform of the organization and management of the House of Councillors. There were many opinions aimed at cancelling constituency merger in some way. However, there were differences in opinion as to whether to maintain the election system based on prefectural constituencies, change constituencies to those based on wider areas instead of prefectures, or increase the total number of seats for members, and factions could not eventually reach a consensus with regard to the specific direction of the reform of the election system for the House of Councillors. At the meetings of the Research Commission on the Constitution in the House of Councillors held in May and June 2022, the discussions for the reform of the election system for the House of Councillors were in the same situation as above. (11) On July 10, 2022, the Election was held as the second regular election under the Provisions on Apportionment of Seats in this Case. The maximum disparity between constituencies at the time of that election was 3.03 to 1. In that Election, voter turnout in Tottori Prefecture, which was subject to constituency merger, was even lower than that at the time of the 2019 Election and fell to a new low, and voter turnout in Tokushima Prefecture remained the lowest in the nation, although it did increase from that at the time of the 2019 Election. The rate of invalid votes in each of the four prefectures that were subject to constituency merger was above the national average. 3. (1) It is understood that the Constitution requires equality in content of voting rights, in other words, equality in the influence of a vote cast by each voter to elect a member of the House, i.e., equality in the value of votes. On the other hand, the Constitution leaves to the discretion of the Diet the decision of what kind of the election system to make in order to reflect the people's interests and opinions in state affairs in a fair and effective manner. Equality in the value of votes is not the only absolute criterion used when deciding on an election system, and it should be realized harmoniously with other policy purposes or reasons the Diet can justifiably take into consideration. Therefore, as long as a specific decision made by the Diet is reasonable in the exercise of its discretionary power, it cannot be said that the decision is in violation of the Constitution, even if equality in the value of votes may be compromised to some extent due to that decision. It is understood that the purport of the Constitution of adopting the bicameral system and differentiating the House of Representatives and the House of Councillors in terms of their power, their members' terms of office, etc. is to cause the Diet to be the organ representing the people in a fair and effective manner by having each House exercise its distinctive functions. From this perspective, the election system for members of the House of Councillors as explained in the above 2. (1) is to divide members of the House of Councillors into members elected from the national constituency (members elected through proportional representation after the amendment to the Public Offices Election Act by Act No. 81 of 1982) and members elected from local constituencies (members elected from the constituencies after the same amendment), the former of which shall be elected through the constituency nationwide (of all prefectures), and the latter of which shall be elected from respective prefectural constituencies. At the time of the enactment of the Act on the Election of Members of the House of Councillors in 1947 and the Public Offices Election Act in 1950, it cannot be said that the establishment of such election system had gone beyond the reasonable exercise of the discretionary power of the Diet. However, it is appropriate to understand that those Provisions on the Apportionment of Seats become in violation of the Constitution in the case where although, as a result of constant population changes in an era of rapid social and economic change, extreme inequality in the value of votes has arisen under the above system and has been going on for a considerable period, the Diet fails to take measures for rectifying such inequality, and such failure is determined as going beyond the bounds of the Diet's discretionary power. The reasoning presented above is in line with the purports of the series of Grand Bench judgments previously handed down regarding elections of members of the House of Councillors (members elected from local constituencies or members elected from the constituencies) starting from 1979(Gyo-Tsu)65, judgment of the Grand Bench of the Supreme Court of April 27, 1983, Minshu Vol. 37, No. 3, at 345, and there is no need to modify it as the basic framework for determinations. (2) The Constitution gives superiority to the House of Representatives with regard to certain matters under the bicameral system. On the other hand, the Constitution provides that the term of office for members of the House of Councillors shall be six years through no dissolution of that House, and elections for half the members shall take place every three years (Article 46, etc.). It is understood that the purport of such provisions is to reflect the will of the people from a multifaceted and long-term perspective, introduce checks and balances with the House of Representatives, and ensure stability and continuity in the management of state affairs by means such as giving the House of Councillors the power equivalent to that of the House of Representatives for many things, including legislation, and at the same time, making the term of office for members of the House of Councillors longer than that of the House of Representatives. How the above purport of the Constitution is realized and harmonized with the demand for equality in the value of votes through what kind of specific election system is left to the reasonable discretion of the Diet, including how the characteristics and functions of the House of Councillors under the bicameral system, as well as differences with the House of Representatives, should be situated and how these should be reflected in the election system for each House. And, it is thought that it can also be approved as a reasonable exercise of the discretionary power given to the Diet in making decisions regarding the election system, to reflect the various opinions from all levels of the people in the House of Councillors by adopting an election system for the House that is different from the House of Representatives, and thereby to allow the House of Councillors to exercise its unique functions different from those of the House of Representatives. In making a specific decision regarding the election system, it cannot be said that considering as a factor the significance, substance, etc. of a prefecture that is a politically unified unit should be denied, from the perspective of additionally emphasizing significance or functionality of intensive reflection of the will of the residents in a certain area. It is not understood that the building of an election system based on these factors immediately goes beyond the reasonable discretion of the Diet, as long as the factors remain in harmony with the demand for equality in the value of votes. (3) While the election systems for members of the House of Councillors and for members of the House of Representatives are becoming more homogeneous through changes in methods, etc. of election in the past, for elections of members of the House of Representatives, the criteria for demarcation has been established to the effect that the disparity between constituencies in terms of population is less than 2 to 1 due to systematic consideration of the demand for equality in the value of votes, and measures have been taken so that disparity at or greater than 2 to 1 will, at the very least, not remain for an extended period (see Articles 3 and 4 of the Act for Establishment of the Council on the House of Representatives Electoral District). Under rapidly changing social conditions, the role of the House of Councillors in the management of state affairs is becoming more substantial in the context of the longer term of office for members of that House. Then, even taking into account the purport of the Constitution concerning the bicameral system and the unique factors requiring consideration in apportioning seats in the House of Councillors, including elections for half the members, it is difficult to find any reason for which the demand for equality in the value of votes is instantly relaxed for elections of members of the House of Councillors. Therefore, it should be said that it is required that the legislature, in the situation where constant population changes are expected in the future, discuss, and continue efforts at, measures required to further rectify the disparity and to maintain the rectified disparity without allowing it to widen again (see the 2020 Grand Bench Judgment). From this perspective, until the Election, while certain discussions have been held among the factions with regard to reforming the election system for members of the House of Councillors at meetings of organizations including the House of Councillors Reform Council, established in 2021, there is still no prospect of law amendments for further disparity rectification, and it is difficult to even say that consideration is being developed specifically towards the realization of such rectification. However, due to the Amendment of 2015 containing the introduction of the two merged constituencies of four prefectures, the maximum disparity between constituencies that was approximately 5 to 1 over several decades was reduced to around 3 to 1, and the extreme inequality pointed out in the 2012 Grand Bench Judgment, etc. was eliminated for the time being. And, for approximately seven years from the same amendment to the Election, under the Provisions on the Apportionment of Seats after the same amendment and the Provisions on the Apportionment of Seats in this Case, the above merged constituencies have been maintained and the maximum disparity between constituencies has been around 3 to 1, which cannot be said to be significantly widening. Under these circumstances, the legislature has discussed measures including the creation of a wider constituency than a prefecture from the perspective of further rectifying disparity, and it can be thought that the current election system with prefectural constituencies will be further reviewed through these measures. However, taking into account facts including continuously decreasing voter turnout and the increasing rate of invalid votes in the four prefectures subject to constituency merger after such merger, it seems that eligible voters still have a strong belief that they should elect Diet members who are familiar with their local situation in each prefecture and this belief affects their interest in elections and voting behavior. It is thought that these circumstances suggest that there are issues to be carefully considered from the perspective of reflecting the people's interests and opinions in state affairs in a fair and effective manner under a representative democracy in further reviewing the above system. In addition, although the legislature has also discussed measures for reviewing seats in the House of Councillors to further rectify disparity, it is expected that there are also various constraints in taking these measures. Then, in order for the legislature to continue efforts for the above rectification, it is thought to be necessary to obtain the understanding of a wide range of people while scrutinizing the effectiveness and issues of various measures through further discussions, and there is the prospect of still requiring a certain amount of time to reach a reasonable solution. Under the circumstances stated above, given that while having had continuous discussions about reforming the election system for members of the House of Councillors, the legislature has maintained the Provisions on the Apportionment of Seats in this Case, including the two merged constituencies of four prefectures, by considering matters including preventing the widening of disparity, it cannot be said that disparity in terms of the value of votes indicated by the maximum disparity between constituencies at the time of the Election is contrary to the demand for equality in the value of votes under the Constitution, even taking into consideration that the legislature has not specifically taken new measures to further rectify disparity and to maintain the rectified disparity without allowing it to widen again. (4) Therefore, it cannot be said that the disparity between constituencies in terms of the value of votes under the Provisions on the Apportionment of Seats in this Case after the Amendment of 2018 at the time of the Election was extremely unequal to the extent the question of unconstitutionality arose, and accordingly, it cannot be said that the Provisions on the Apportionment of Seats in this Case are in violation of the Constitution. While population has concentrated in urban areas and constant population changes are expected in the future, it should additionally be said that issues including further rectification of disparity are urgent issues taking into consideration that the election system under which the people's interests and opinions are reflected in state affairs in a fair and effective manner is the basis of democratic politics and that equality in the value of votes is a constitutional demand. Even though there are issues and constraints on various measures such as those stated in the above (3), which have been discussed by the legislature, and careful consideration is by nature required, it is required that the legislature specifically consider measures such as those for further rectifying disparity, including a fundamental review of the current election system, based on changes in social conditions and the above issues so that the will of the people can be reflected in a more appropriate manner, and then implement legislative measures that can be understood by a wide range of people. 4. For the reasons described above, the determination of the court of prior instance to the effect that it cannot be said that the Provisions on the Apportionment of Seats in this Case were in violation of the Constitution at the time of the Election can be accepted. None of the appellants' arguments are acceptable. Accordingly, the Court unanimously decides as set forth in the main text of the judgment, except for the dissenting opinion stated by Justice UGA Katsuya. Justice MIURA Mamoru, Justice KUSANO Koichi, and Justice OJIMA Akira provided opinions. The opinion of Justice MIURA Mamoru is as follows: Although I agree with the majority opinion in conclusion, I think that the disparity between constituencies in terms of the value of votes under the Provisions on the Apportionment of Seats in this Case at the time of the Election was extremely unequal to the extent the question of unconstitutionality arose (hereinafter, in this opinion, also referred to as "Unconstitutional") and thus state my opinion. 1. In the 2020 Grand Bench Judgment, although I agreed with the conclusion of the majority opinion, I stated my opinion to the effect that the disparity between constituencies in terms of the value of votes under the Provisions on the Apportionment of Seats in this Case at the time of the 2019 Election was Unconstitutional. What I have stated as reasons for that are basically applicable at the time of the Election, and on the premise of this, I state my opinion on this case mainly regarding consideration based on the same judgment and matters such as the circumstances thereafter. 2. (1) Based on matters including the purport of the Constitution of adopting the bicameral system and differentiating the House of Representatives and the House of Councillors in terms of their power, members' terms of office, etc., how the characteristics and functions of the House of Councillors should be established and by what kind of election system those should be harmonized with the demand for equality in the value of votes are left to the reasonable discretion of the Diet. However, it is clear that the House of Councillors, along with the House of Representatives, assumes responsibility for the appropriate reflection of the will of the people in state affairs as the highest organ of state power under the Constitution, and accordingly, it is difficult to find the reason for which the demand for equality in the value of votes is instantly relaxed for elections of members of the House of Councillors. Also, in light of the fact that for the House of Representatives, the criteria for demarcation has been established to the effect that the disparity between constituencies in terms of population is less than 2 to 1, as systematic consideration for such demand, it is required that for the House of Councillors, due consideration be given also to equality in the value of votes so that the will of the people is appropriately reflected. There are certainly unique factors for the House of Councillors requiring consideration in apportioning seats therein, including the election of half the members every three years under the Constitution. However, even though such factors may be technical constraints on system design, they are not reasons to tolerate disparities in terms of the value of votes that are much larger than that in the House of Representatives. (2) The maximum disparity between constituencies at the time of the Election was 3.03 to 1. There were three constituencies where disparity exceeded 3 to 1, and the total number of voters in these constituencies accounted for approximately 20.1% of the entire electorate, which widened significantly from the approximately 1.8% as the above rate of constituencies where disparity exceeded 3 to 1 at the time of the 2019 Election. Equality in the value of votes is related to the basis of the sovereignty of the people and parliamentary democracy, and disparity in terms of the value of votes exceeding 3 to 1 can never be overlooked in light of "one person, one vote" as the basic principle of elections. The majority opinion also states that it should be said that issues including further rectification of disparity are urgent issues taking into consideration that the election system under which the people's interests and opinions are reflected in state affairs in a fair and effective manner is the basis of democratic politics and that equality in the value of votes is a constitutional demand. It is understood that the majority opinion is based on the premise that disparity in terms of the value of votes under the Provisions on the Apportionment of Seats in this Case is required to be rectified. (3) Changes in the election system for the House of Councillors are as described in paragraph 2 of the majority opinion. Although disparity between prefectures in terms of population has significantly widened due to population changes in the past, the total number of seats for members elected from the constituencies has been mostly maintained based on prefectural constituencies, and on the premise of apportionment of an even number of seats, two seats have been maintained even in a constituency with a small population while the number of seats has been increased or decreased individually in other constituencies and changes made in the Amendment of 2015 were only constituency merger in which four prefectures were merged into two constituencies. It is understood that the system in which seats are determined for prefectural constituencies additionally emphasizes the significance or functionality of intensively reflecting the will of the residents of the prefecture in light of the fact that each prefecture has a significance and substance of its own historically, as well as politically, economically, and socially and is understood to be a politically unified unit. However, the seats in each constituency determined under the above circumstances are not apportioned in proportion to the current population based on a certain formula or other method. While the number of voters per member at the time of the Election was approximately 709,589 nationwide, in the three constituencies (with two seats each) of Fukui Prefecture, Yamanashi Prefecture, and Saga Prefecture, where populations are particularly small, the number of voters was only about 630,000 to 680,000. Thus, in terms of apportionment of seats in proportion to population, although the number of seats to be apportioned to each of these constituencies is less than one, two seats are apportioned with one of them being completely insubstantial. In the four prefectures subject to constituency merger, this same issue existed prior to the merger. constituency merger itself is inconsistent with the above purport of prefectural constituencies, and problematic in terms of fairness (see 2. (3), C of my opinion in the 2020 Grand Bench Judgment). Currently, the number of seats for each of the 32 constituencies with small populations is 2, and elections for one member take place every three years, while that same number for each of the 13 constituencies that include populous urban areas is 4 to 12 and elections for several members take place every three years. Unlike the time of the enactment of the Act on the Election of Members of the House of Councillors in 1947, under circumstances where seats have not been apportioned to each constituency in proportion to the current population in that constituency and there are constituencies with one extra, completely insubstantial seat, as well as merged constituencies that deny a prefecture-based political unit, it should be said that it becomes difficult to understand that the coexistence of the single-seat constituency system under which an election for one member takes place every three years and the multiple-seat constituency system under which elections for several members take place is based on reasonable policy purposes or reasons to reflect the people's interests and opinions in state affairs in a fair and effective manner. Thus, it is clear that the current system under which the total number of seats for members elected from the constituencies is maintained while prefectural constituencies are adopted basically on the premise of apportionment of an even number of seats is the major factor causing the above disparity in terms of the value of votes. It can be said that under circumstances where constant population changes are expected in the future, such system is a factor making it extremely difficult to realize the establishment of a reasonable election system while rectifying disparity in terms of the value of votes. (4) Equality in the value of votes is a direct demand under the Constitution, which is related to the basis of the sovereignty of the people and parliamentary democracy. On the other hand, a prefecture is not a concept provided in the Constitution, and there is no constitutional demand that a prefecture be a unit of constituency. Even in the case of prefectural constituencies, while disparity in terms of the value of votes is improved to some extent by increasing the total number of seats for members elected from the constituencies, there is no constitutional demand to restrict such measures. Such increase in the total number of seats involves a financial burden and requires the understanding of the people. However, the total number of seats in the House of Councillors is 248, which may be deemed to be considerably smaller than the 465 total seats in the House of Representatives. Furthermore, given that an election of members elected through proportional representation of the House of Councillors has different characteristics from an election of members elected from the constituencies (hereinafter referred to as "Election in Constituency" in this opinion), no allotment of seats or other condition is provided in the Constitution. While the Constitution provides that an election for half the members shall take place every three years, and it is assumed that the apportionment of an even number of seats to each constituency will be the principal method, such apportionment itself is not a constitutional demand. It cannot be said that the adoption of a different election system every three years (for example, a system under which an Election in Constituency based on prefectural constituencies and an Election in Constituency based on areas wider than prefectures will be held every other election) is denied under the Constitution. (5) From the beginning, how harmonization with the demand for equality in the value of votes should be realized through what kind of election system is left to the reasonable discretion of the Diet. Building a consensus among the factions in a highly political and policy considerations while scrutinizing various issues based on matters such as the characteristics and functions of the House of Councillors requires appropriate procedures and time and will inevitably be gradually realized. Seeing what happened in the past with regard to the reform of the election system of the House of Councillors, while the maximum disparity between constituencies was continuously approximately 5 to 1, the first consultation took place following the above-mentioned judgment of the Grand Bench of the Supreme Court of January 14, 2004, as cited in the majority opinion. For more than ten years until the Amendment of 2018, considerations and discussions were held continuously from various perspectives based also on the series of Grand Bench judgments previously handed down. During that period of time, the Amendment of 2006 (meaning the amendment to the Public Offices Election Act by Act No. 52 of 2018; the same applies hereinafter) and the Amendment of 2012 (meaning the amendment to the Public Offices Election Act by the 2012 Amendment Act; the same applies hereinafter) were made, and the maximum disparity between constituencies was approximately 5 to 1 throughout the period. The 2012 Grand Bench Judgment and the 2014 Grand Bench Judgment held that this disparity in terms of the value of votes was Unconstitutional pointing out that it was necessary to eliminate the above inequality by taking legislative measures containing a review of the current election system itself, such as changing the current method of allotting seats for each prefectural constituency in an appropriate manner. Thereafter, the Amendment of 2015 contained not only an increase or decrease in seats for some constituencies, but also a review of the election system based on prefectural constituencies by merging constituencies first time since the establishment of the House of Councillors, and by these measures, the maximum disparity between constituencies was reduced to around 3 to 1. The 2017 Grand Bench Judgment stated that the same amendment could be deemed as attempts made to rectify the disparity in line with the purport of the 2012 Grand Bench Judgment, etc. and pointed out that Article 7 of the Supplementary Provisions of the 2015 Amendment Act provided that a fundamental review of the election system shall be continuously considered for the regular election to be held in 2019 and that a conclusion shall be reached without fail. The judgment then held that the direction and resolution of the legislature for further rectification of disparity in terms of the value of votes in the future were shown, and accordingly, it could not be said that disparity in terms of the value of votes was Unconstitutional. Further after, the Amendment of 2018 maintained the above merged constituencies and increased the seats for one constituency by two, and by these measures, the maximum disparity between constituencies was further reduced, although only slightly. The 2020 Grand Bench Judgment held that while it was required that the legislature discuss, and continue efforts at, measures required to further rectify disparity, it could not be said that in the same amendment, these efforts were making great progress. However, the judgment pointed out that based on the circumstances and details of the matter, the same amendment was to give consideration so as to maintain the direction of the 2015 Amendment Act, and then held that it could not be concluded the positive attitude towards the rectification of disparity had been lost in the course of consideration by the legislature, and accordingly, it could not be said that the disparity in terms of the value of votes was Unconstitutional. Although the maximum disparity between constituencies has been thus reduced from approximately 5 to 1 to around 3 to 1, it is understood that both the 2017 Grand Bench Judgment and the 2020 Grand Bench Judgment have determined that, while on the premise that it is necessary to continue to further rectify disparity, the Unconstitutional state has been eliminated for the time being or the state after such elimination has been maintained, also taking into consideration the evaluation that the Amendment of 2015 and the Amendment of 2018 are oriented towards the rectification of disparity. Especially with regard to the Amendment of 2018, although various discussions and considerations about the election system had been held on the premise of the direction in the 2015 Amendment Act, there were large differences in opinion among the factions that could not eventually reach a consensus, and in such a situation, the 2018 Amendment Act was enacted for the 2019 Election. Based on such circumstances and the details of the matter, it can be said that the above determination of the 2020 Grand Bench Judgment has been made using marginal evaluation to the effect that it cannot be concluded that the positive attitude towards the rectification of disparity has been lost in the course of consideration by the legislature. Taking into consideration that equality in the value of votes is a constitutional demand related to the basis of the sovereignty of the people and parliamentary democracy, it should be said that issues including further rectification of the above disparity in terms of the value of votes continuously based on long-standing consultations are urgent issues. (6) On the premise of the above, based on the circumstances held by the 2017 Grand Bench Judgment and the 2020 Grand Bench Judgment, the attitude in the Diet at the time of the Election toward the rectification of disparity is considered. Although I stated in my opinion 2. (3), D of the 2020 Grand Bench Judgment that it could not be considered that the Amendment of 2018 was oriented towards further rectification of disparity, I would like to put that point aside here and consider the circumstances held by both judgments. The 2018 Amendment Act contains no provisions similar to the above Supplementary Provisions of the 2015 Amendment Act, and in the course of deliberation, although a supplementary resolution has been adopted stating that reform of the election system for the House of Councillors in the future should be continuously considered in accordance with the purport of the Constitution, no clear statement is made in the resolution with regard to matters of the rectification of disparity. In May 2021, after the 2019 Election, the House of Councillors Reform Council, consisting of respective representatives of the factions in the House of Councillors, was established anew, and until June 2022, reform of the election system including the rectification of disparity was discussed as one of the items of consideration for the reform of the organization and management of the House of Councillors. However, the factions could not eventually reach a consensus with regard to the specific direction of the reform of the election system, and it was decided that the issue would be passed on to the following council to be established after the Election together with other items of consideration. An amendment act that changes the election system should be enacted well before the relevant election considering the factors including the preparation period required. In the past, excluding cases of amendments in connection with the reversion of Okinawa, each amendment to the Public Offices Election Act amending the Provisions on the Apportionment of Seats (Amendment of 1994, Amendment of 2000, Amendment of 2006, Amendment of 2012, Amendment of 2015, and Amendment of 2018) was made in the year immediately before the year of a regular election. However, after the Amendment of 2018, no opportunity for consultation had been created until approximately one year and two months before the Election, no consultation had been held for nearly three years since the same amendment, and unlike in the past, even after the establishment of the House of Councillors Reform Council, no opportunity to have a specialized consultation regarding the election system had been created. It also cannot be said that specific efforts have been continued to implement legislative or other measures for the Election. No legislative measures to further rectify disparity had thus been taken prior to the Election. There is still no prospect for such rectification, and it is difficult to even say that consideration is being developed specifically towards the realization of that rectification. Although the Amendment of 2018 has been evaluated to the effect that it cannot be concluded that the positive attitude towards the rectification of disparity had been lost in the course of consideration by the legislature on the premise of the direction of the Amendment of 2015, taking into account that no specific measures for realizing such rectification were implemented prior to the Election as well as the circumstances and other matters, it is difficult to consider the above attitude as still having been maintained in the Diet at the time of the Election, even taking into consideration that the Diet has maintained the Provisions on the Apportionment of Seats in this Case including merged constituencies while continuing to discuss the reform of the election system. As stated in my opinion of the 2020 Grand Bench Judgment, even from the standpoint of being unable to consider the Amendment of 2018 as being oriented to further rectify disparity, it goes without saying that there was no change in that evaluation at the time of the Election. (7) A. While the majority opinion points out that there is still no prospect of amending laws to further rectify disparity, and it is difficult to even say that consideration is being developed specifically towards the realization of such rectification, it does not clearly indicate the evaluation of the attitude towards the rectification of disparity in the Diet at the time of the Election. However, with regard to disparity in terms of the value of votes under the Provisions on the Apportionment of Seats in this Case, although issues including further rectification of disparity are urgent issues, if the above positive attitude shown by the specific legislative measures of the Amendment of 2015 and the Amendment of 2018 cannot be considered as still being maintained while there are large differences in opinion among the factions about the specific direction of election system reform, it also cannot be said that there is an objective prospect of measures being taken to rectify the above disparity in terms of the value of votes. On the premise of the holdings of the 2020 Grand Bench Judgment, etc., it is natural that many high courts have shown their evaluations of the above attitude in suits to seek the invalidation of the Election on the grounds that the Provisions on the Apportionment of Seats in this Case were unconstitutional and thus invalid. Given that the above attitude at the time of the Election is as stated in paragraph (6), there is considerable doubt as to the purport of the majority opinion not to clearly indicate an evaluation on this point. B. On the other hand, with regard to a further review of the current election system based on prefectural constituencies through measures including the creation of constituencies wider than prefectures, the majority opinion points out the decreases in voter turnout and the increases in the rate of invalid votes in the four prefectures subject to constituency merger and states that these circumstances are thought to suggest that there are issues to be carefully considered from the perspective of reflecting the people's interests and opinions in state affairs in a fair and effective manner under representative democracy. However, it is thought that the circumstances in the four prefectures after the introduction of constituency merger, including voter turnout there, suggest that constituency merger itself is problematic as stated above. Although these issues may be reasons for which it is inappropriate to further expand constituency merger and consideration should be made in the direction of cancellation thereof, it is difficult to say that they are immediately connected to issues involved in further review of the election system based on prefectural constituencies. For example, in the case of the creation of constituencies wider than prefectures, seats can be apportioned in proportion to population based on a certain formula or other method while taking into consideration regional grouping, and the system can be made so that elections for several members take place every three years in all constituencies. It seems that there is still room to also consider it reasonable to some extent from the perspective of reflecting the people's interests and opinions in state affairs in a fair and effective manner. If such wider constituencies are created and elections for several members take place every three years, then it is difficult to think that the question of the voters' interests in elections or voting behavior arises, similar to an issue such as a decrease in voter turnout under a system in which an election for one member takes place every three years in a merged constituency. It is understood that the 2020 Grand Bench Judgment has only mentioned the above issues, including the decrease in voter turnout, in connection with the opinion pointed out to the effect that the cancellation of constituency merger is strongly desired, and has not suggested that these issues are connected to issues involved in the review of the election system based on prefectural constituencies. With regard to issues involved in the review of the current election system through measures including the creation of constituencies wider than prefectures, which is one of the central problems in election system reform for the House of Councillors, considerations and discussions have been held continuously over the years from various perspectives based on the series of Grand Bench judgments previously handed down. In this regard, it cannot be thought that new special circumstances have arisen, which disturb efforts for the rectification of disparity. The same applies to measures that include the review of seats in the House of Councillors. C. The majority opinion also states that in order for the legislature to continue efforts to further rectify disparity, it is thought to be necessary to obtain the understanding of a wide range of people while scrutinizing the effectiveness and issues of various measures through further discussions, and there is the prospect of still requiring a certain amount of time to reach a reasonable solution. However, with regard to the reform of the election system for the House of Councillors, more than 18 years had already passed prior to the Election since the time the Diet had started to consult thereon. During that period of time, while considerations and discussions were being held continuously from various perspectives based on the series of Grand Bench judgments previously handed down, and the Act having been amended four times, it was required that disparity be further rectified even after those law amendments, as indicated by each Grand Bench judgment. In this situation, approximately nine years and eight months had passed prior to the Election since the time the 2012 Amendment Act provided that a conclusion regarding a fundamental review of the election system should be reached for the regular election to be held in 2016. Furthermore, approximately seven years had also passed since the time the 2015 Amendment Act provided that a conclusion regarding a fundamental review of the election system should be reached without fail for the regular election to be held in 2019. It cannot be said that such purpose has been achieved by the Amendment of 2018, and approximately four years have passed since then. On the other hand, although the Amendment of 2018 has been evaluated to the effect that it cannot be concluded that the positive attitude towards the rectification of disparity had been lost in the course of consideration by the legislature on the premise of the direction of the 2015 Amendment Act, there is a long period of inaction thereafter during which no further consultation was held for the Election, while consultations on election system reform as one of the items to be considered were only being held for around one year, and no specific measures for realizing the rectification of disparity had been taken prior to the Election. It is difficult to say that the above attitude was still being maintained at the time of the Election. In such situation, even though it is stated that "there is the prospect of still requiring a certain amount of time to reach a reasonable solution," there is no actual prospect of a solution being reached since there remain large differences in opinion among the factions, so the prospect thereof remains unknown. Taking into account the circumstances surrounding the above attitude as indicated by the Amendment of 2015 and the Amendment of 2018, it also cannot be said that there is an objective prospect of measures to be taken to rectify disparity in terms of the value of votes under the Provisions on the Apportionment of Seats in this Case. To begin with, making decisions regarding whether or not to implement legislative measures and determining what kind of consideration or discussion is by what time to be held in order to make such decisions is precisely the legislative process within the wide discretion of the Diet, which includes political and policy considerations. If there is no situation where the details, direction, and other matters to further rectify disparity are indicated through specific legislative measures, it is difficult to say that it is appropriate for the court to estimate the period of time required to reach a reasonable solution based on the whole of past legislative processes and to take such period into consideration, from the perspective of making an objective evaluation of inequality, as long as the Diet has the above discretion. In the past, there has been no case where the prospect by estimating as above was clearly indicated as a reason for which it was determined that it cannot be said that disparity in terms of the value of votes was Unconstitutional in Grand Bench judgments on suits to seek the invalidation of elections due to inequality in the value of votes in the House of Representatives and the House of Councillors. Such prospect has been considered when making a determination as to whether a failure to rectify the Unconstitutional state prior to the relevant election went beyond the bounds of the Diet's discretionary power on the premise of its responsibility for such rectification (see the 2014 Grand Bench Judgment, etc.) Taking into account the above, reasonable grounds cannot be found on which the above prospect, as pointed out by the majority opinion, is the situation to be considered. D. As stated above, the majority opinion takes into consideration the prospect of the legislative process within the wide discretion of the Diet, without clearly indicating the direction of the rectification of disparity or the evaluation of attitudes towards it based on specific legislative measures. A determination as to whether a disparity in terms of the value of votes was Unconstitutional will be made by taking into comprehensive consideration matters such as the circumstances of the disparity in terms of the value of votes at the time of the relevant election and the situation as a factor of the disparity. It has to be said that the selection of the situation subject to consideration by the majority opinion differs that in the 2017 Grand Bench Judgment and the 2020 Grand Bench Judgment, and increases the possibility that such disparity is not deemed as Unconstitutional regardless of the circumstances oriented towards the rectification of the disparity. Thus, the holding of the majority opinion is different from the holding of the 2020 Grand Bench Judgment while the subject matter, the Provisions on the Apportionment of Seats in this Case, is the same. After a period of no consultations being held regarding the Election and no specific development for the realization of the rectification of disparity, it seems that the understanding by the many people in the nation about the purport of such holding would be difficult to obtain. The holding of the majority opinion may also be taken as a suggestion of not only inaction by the Diet prior to the Election but also inaction during "still a certain amount of time" to be tolerated in the future. Due to that, it is a matter of concern that a condition "still requiring a certain amount of time" persists while disparity will not be further rectified prior to the regular election to be held in 2025. It should be said that the attitude of the Supreme Court itself towards further disparity rectification is questionable since the Constitution requires equality in the value of votes. (8) Under the above circumstances, the disparity between constituencies in terms of the value of votes at the time of the Election is in a state that cannot be overlooked in light of the constitutional demand for equality in the value of votes, and even taking into consideration that the merged constituencies have been maintained for approximately seven years prior to the Election, and the maximum disparity between constituencies has been around 3 to 1 and cannot be said to be significantly widening, reasons for which this disparity is justified cannot be found. (9) If these circumstances are put together, it should be said that at the time of the Election, the disparity between constituencies in terms of the value of votes under the Provisions on the Apportionment of Seats in this Case was extremely unequal to the extent the question of unconstitutionality arose. 3. Next, whether it can be said that the fact that the above Unconstitutional state has not been rectified within the period prior to the Election goes beyond the bounds of the Diet's discretionary power is considered. While the 2020 Grand Bench Judgment determined to the effect that it could not be said that the disparity between constituencies in terms of the value of votes under the Provisions on the Apportionment of Seats in this Case at the time of the election in 2019 was Unconstitutional, and accordingly, it could not be said that the Provisions on the Apportionment of Seats in this Case were in violation of the Constitution, the judgment did not attach any special reservation or condition to the above determination at that time. The Election was held under the same Provisions on the Apportionment of Seats in this Case. On the premise of the 2020 Grand Bench Judgment as above, it is difficult to find that circumstances prior to the Election based on which Diet specifically recognized that the disparity between constituencies in terms of the value of votes under the Provisions on the Apportionment of Seats in this Case were extremely unequal to the extent the question of unconstitutionality arose. It thus cannot be said that the fact that the extreme inequality to the extent the question of unconstitutionality arose was not rectified within the period prior to the Election went beyond the bounds of the Diet's discretionary power, and accordingly, it cannot be said that the Provisions on the Apportionment of Seats in this Case were in violation of the Constitution. The opinion of Justice KUSANO Koichi is as follows: Although I agree with the majority opinion in conclusion, I have some differing views on the reasons leading to the conclusion, and accordingly, I would like to clarify my opinion with the following: 1. As an indicator for discussing the issue of disparity in terms of the value of votes in a regular election of members of the House of Councillors, this Court has consistently used the concept of maximum disparity. Maximum disparity is surely a simple and appealing concept, and the historical role it has played in the formation of case law for the issue of disparity in terms of the value of votes deserves recognition. However, maximum disparity is solely a concept to compare eligible voters to whom the maximum value of votes is given and those voters to whom only the minimum value of votes is given. Accordingly, unless the concept is used particularly as an indicator to assert and prove the fact that in the Election, eligible voters in the Kanagawa District with the minimum value of votes were being discriminatorily disadvantaged as compared to those voters in the Fukui District with the maximum value of votes (however, in that case, whether discriminatory treatment between both voters existed should be argued together with other circumstances found for eligible voters in the Kanagawa District and those voters in the Fukui District), it has to be said that the indicator somewhat lacks precision as an indicator used to argue the issue of disparity in terms of the value of votes from the perspective of all constituencies. (Arguing the issue of disparity in terms of the value of votes by using the maximum disparity can be compared to arguing disparity in the distribution of income in society as a whole by comparing those who earn the highest income to those who earn the lowest income in society.) I think that an indicator used to measure disparity in terms of the value of votes must be one that incorporates variations in the value of votes in all constituencies into the calculation without exaggeration or omission. Although there are some statistical indicators meeting this requirement, on the point that a rule of thumb to the effect that for all things useful to mankind (and the right to vote would be one of them), the rate of change in increased utility gradually decreases as a result of an increase in quantity (conversely, the rate of change in decreased utility gradually increases as a result of a decrease in quantity; hereinafter referred to as the "Law of Diminishing Marginal Utility") is incorporated into calculation principles, a Gini coefficient would be deemed as the most reasonable indicator to argue the issue of disparity in terms of the value of votes (that a Gini coefficient is also used widely as an indicator to argue disparity in the distribution of income in society as a whole is well known). 2. (1) While the specific methodology in cases arguing disparity in terms of the value of votes using a Gini coefficient is basically the same as the statement titled "theory of conditional constitutionality" which I made in my opinion (hereinafter referred to as the "Previous Opinion") in the 2020 Grand Bench Judgment (hereinafter referred to as the "Previous Judgment" in this opinion), there is one point on which I have changed my view from the Previous Opinion. Namely, in the Previous Opinion, a Gini coefficient was calculated only for an Election in Constituency. It seems that such limitation is consistent with the way in which this Court has thought in the past. However, thinking about it again, even though the election method is different between an Election through Proportional Representation and an Election in Constituency (while candidates compete with each other for votes in an Election in Constituency, political parties compete primarily for votes in an Election through Proportional Representation), (i) it is systematically guaranteed that all eligible voters vote in both Elections in Constituency and Elections through Proportional Representation at the same place and on the same date and time independently from each other (namely, voting behavior, on the one hand, is not bound by such behavior on the other hand); and (ii) members elected are qualified as members of the House of Councillors exactly in the same manner regardless of whether they are elected through an Election in Constituency or an Election through Proportional Representation. Accordingly, in a suit to seek the invalidation of an election such as this case, it is difficult to think that it is reasonable to think of Elections in Constituency and Elections through Proportional Representation separately for the purpose of quantitatively expressing the influence of votes by voters on the outcome of an election. From the beginning, although this point is not the point at issue in relation to the question of whether to use the maximum disparity or a Gini coefficient, if a Gini coefficient is used regardless of the way in which this Court has thought in the past, I think that it is easier to make an explanation for changing also the way of thinking about this point, and it is also very necessary to change the way of thinking in practice. What this means is that while with the use of maximum disparity there is room to argue the propriety of numerical values without comparison with other election systems through rhetorical statements such as a statement that "a system in which one person has more than one vote is unfair" (however, I myself do not support the state of such discourse), with the use of a Gini coefficient, it is possible to objectively argue the degree of disparity in terms of the value of votes only by comparison with other election systems in or outside of Japan. And since it is expected that the election through proportional representation may or may not be included in election systems subject to comparison, if the unit of comparison is limited to a portion of elections in the whole election system, it becomes difficult to make accurate comparisons with other systems. On the premise of the above, a Gini coefficient should be calculated using a value obtained by adding the number of members per eligible voter in an Election through Proportional Representation (for the House of Councillors, since an Election through Proportional Representation is held nationwide, this value should be the same for all eligible voters) to the number of members per eligible voter in an Election in Constituency (hereinafter referred to as the "Overall Vote Value"). (2) A Gini coefficient for the Election calculated using the Overall Vote Value is 8.73% (0.0873; the maximum disparity in the Election as calculated using the Overall Vote Value is 2.06 to 1). The value of this Gini coefficient is almost the same 8.49% (0.0849) as the Gini coefficient (calculated using the Overall Vote Value) for the 2019 Election subject to the Previous Judgment. It is therefore not surprising that the evaluation of the Election coincides with the evaluation of the 2019 Election. 3. However, the fact that the disparity in terms of the value of votes at the time of the Election is almost equivalent to the disparity at the time of the 2019 Election does not suggest that it is unnecessary to question the constitutionality of the Election. On the contrary, a Gini coefficient for a regular election of members of the House of Councillors in Japan (i) has consistently in the past exceeded that coefficient for a relevant general election of members of the House of Representative (a Gini coefficient for the general election of members of the House of Representatives held in 2021 as calculated using the Overall Vote Value is 6.19% (0.0619), and it is expected that the value for the next general election and onwards for which the so-called new demarcation system will be introduced will be further improved); and (ii) it seems difficult to say that the above Gini coefficient is at a good level even compared to representative parliaments in other nations (although it seems that there are not a few nations with a higher Gini coefficient than that for a regular election of members of the House of Councillors in Japan). Taking into account the above facts, the disparity in terms of the value of votes at the time of the Election is sufficient to raise the suspicion that it violates Article 14 of the Constitution, and it could be said that this point deserves serious consideration. 4. However, the Constitution leaves to the discretion of the Diet the decision of what kind of the election system to make in order to reflect the people's interests and opinions in state affairs in a fair and efficient manner. Equality in the value of votes should not be the absolute goal in deciding on the election system but should be realized to the extent possible while resolving policy issues inherent in the election system. (Such an expression may give the impression of an "excuse" to advocates who find the highest value in parity in terms of the value of votes, but it is important to argue the election system from multiple perspectives, and emphasizing more than necessary the importance of the issue of disparity in terms of the value of votes involves the risk of taking away opportunities to argue other important issues inherent in the current election system. This is just one example, but it is also an important issue how to think of age restrictions on the right to vote from the perspective of appropriately distributing benefits among the current population and the population in the future.) Therefore, to determine that the disparity in terms of the value of votes at the time of the Election was extremely unequal to the extent the question of unconstitutionality arose (hereinafter referred to as "Unconstitutional" in this opinion), a plan for system reform that can improve disparity in terms of the value of votes should be explored without restraining the discretionary power of the Diet regarding how policy issues inherent in the election system should be resolved, and the fact that it can be said that the Diet has failed to implement such plan for reform even though such plan exists should be a precondition for such determination. (Such reform plan is required by this Court to determine that the current election system is Unconstitutional and does not preclude the Diet from exercising its discretionary power to implement other reform plans in order to eliminate this Unconstitutional state; to imply this point, the above reform plan will be hereinafter referred to as the "Default Reform Plan"). However, given that (i) prefectures have been in existence as consistently important social and administrative units since before the enactment of the Constitution; (ii) as a result, prefectures also play a significant role as a source of geographical identity of the people; and furthermore, (iii) conformity of national election constituencies to local political units makes for smoother operation of political parties, which function as political ties between these two entities, it should be appropriate to recognize as sufficiently reasonable the fact that the Public Offices Election Act provides for prefectures as constituencies for approximately 60% of the members of the House of Councillors as a whole. Therefore, in consideration of the Default Reform Plan, consideration should be made with priority given to a system in which prefectures will be continuously used as constituencies for members of the House of Councillors at least in the same number as the above and as much as possible (hereinafter such election system will be referred to as the "Prefectural-based Election System" in this opinion). 5. Exploring the Default Reform Plan based on the above (detailed analysis to be omitted here since it has been stated in the Previous Opinion), it has to be said that almost all options for the Default Reform Plan I can think of are contrary to the philosophy of the Prefectural-based Election System (block constituencies, expansion of constituency merger, etc.) or, although they are not contrary to the philosophy of the Prefectural-based Election System, restrains the discretionary power of the Diet regarding how policy issues inherent in the election system should be resolved (abolition of, or significant reduction in, the proportional representation system, plan including an odd number of seats, etc.). Among such plans, the only Default Reform Plan that may be acceptable is a plan to increase the total number of seats and apportion the increased seats with priority given to constituencies with low vote value (hereinafter referred to as the "Plan to Increase Seats"). If the Plan to Increase Seats is implemented, the Gini coefficient in the election system would surely improve in an efficient and (at least theoretically) unlimited manner, and (unless the number of members increased is extremely large) the ability of the legislature to act would not be reduced by the increase in the number of members (and accordingly, it cannot be thought to be contrary to the purport of Article 43, paragraph (2) of the Constitution), or rather, it is reasonable to think that (since it can be expected that new Diet members elected in accordance with the implementation of the Plan to Increase Seats would also deal seriously with state affairs) the functioning of the Diet as a whole would further improve. However, given that the total number of seats in the House of Councillors has long remained at around 250, economies of scale have already been achieved with the current number of members, and accordingly, if the Plan to Increase Seats is implemented to increase the total number of seats, it has to be thought that the Law of Diminishing Marginal Utility is highly likely to come into effect. If so, even though the ability of the Diet to act will be increased by the implementation of the Plan to Increase Seats, the rate of the increase is bound to decline. Accordingly, as long as annual payment per member are the same amount (it would be impossible to force a reduction in annual payment in light of Article 49 of the Constitution), it has to be said that the Plan to Increase Seats is highly likely to impose on the people the specific disadvantage of deteriorating efficiency in the activities of the Diet (results per yen of operating expenses of the Diet). In short, although it can be said that the Plan to Increase Seats is the optimal Default Reform Plan on the point that the Gini coefficient can be efficiently improved without denying the philosophy of the Prefectural-based Election System or the discretionary power of the Diet (since the Diet itself is not disadvantaged), such plan also imposes on the people the specific disadvantage of reducing the efficiency of the activities of the Diet. Taking into account this point, to say that disparity in terms of the value of votes is Unconstitutional on the grounds that the Plan to Increase Seats exists, the facts constituting the grounds of the suspicion that some people actually suffer a disadvantage by the existence of disparity in terms of the value of votes (hereinafter referred to as the "Suspicion of Disadvantage") should be proved. (To prove this, it should be understood to be sufficient to prove there is a significant correlation between disparity in terms of the value of votes and the disadvantage suffered by some people. However, I need not repeat in detail it here since it was detailed in the Previous Opinion; the proof of the facts constituting the grounds of the Suspicion of Disadvantage is also useful in assessing how many seats and seats in which constituencies to increase in order to clear the Suspicion of Disadvantage, and further, to eliminate the Unconstitutional state.) However, in this case, no fact constituting grounds for Suspicion of Disadvantage has been proved. (In a recently published research paper, it is reported that inspection results suggest that no disadvantage has occurred at least as far as the distribution of grants is concerned; see "Social Science Research" Vol. 74, SAITO Hiroharu and TANAKA Wataru "Malapportionment of the House of Councillors and Grant Distribution: Statistical Analysis Approach Based on the ‘Conditional Theory of Constitutionality' of Justice KUSANO Koichi".) 6. According to the above, it is appropriate to understand that it cannot be said that the disparity in terms of the value of votes at the time of the Election was Unconstitutional. Therefore, I come to agree with the conclusion of the majority opinion. The opinion of Justice OJIMA Akira is as follows (defined terms and abbreviations in the majority opinion are used in this opinion): 1. Introduction Differing from the majority opinion, I think that the disparity between constituencies in terms of the value of votes under the Provisions on the Apportionment of Seats in this Case after the Amendment of 2018 was, at the time of the Election, extremely unequal to the extent the question of unconstitutionality arose (the so-called Unconstitutional state). However, the frame of reference constituting my thoughts is nearly the same as the majority opinion. Namely, my thoughts are the same as the majority opinion on the following points; firstly, on the premise of the outline of facts described in 2 of the majority opinion, a review of constitutionality concerning equality in the value of votes should be made under the criteria as described in 3. (1) and (2) of the majority opinion; secondly, as described in paragraphs 1 through 3 of 3. (3) of the majority opinion, while the election system for members of the House of Councillors and that for members of the House of Representatives are becoming more homogeneous and the role of the House of Councillors in the management of state affairs is becoming more substantial, the criteria for demarcation has been legally established for elections of members of the House of Representatives as consideration for the demand for equality in the value of votes, and also with regard to the demand for equality in the value of votes for elections of members of the House of Councillors, although discussions and efforts for further rectification of disparity are required, certain discussions have been held among the factions with regard to the reform of the election system for members of the House of Councillors at meetings of organizations including the House of Councillors Reform Council, but there is still no prospect of law amendments for further rectification of disparity, and accordingly, the current situation is evaluated as being difficult to say that consideration is being developed specifically towards the realization of such rectification. In spite of that, I state my opinion below regarding the reasons for which I think the disparity between constituencies in terms of the value of votes under the Provisions on the Apportionment of Seats in this Case was Unconstitutional at the time of the Election. The core of my opinion is the evaluation of the maximum disparity between constituencies being around 3 to 1 and that of the efforts made by the Diet to rectify this disparity. 2. Concerning the maximum disparity between constituencies being around 3 to 1 (1) The maximum disparity between constituencies at the time of the Election was 3.03 to 1. The issue in this case is whether this disparity was extremely unequal to the extent the question of violation of Article 14 of the Constitution arose after taking into comprehensive consideration the disparity together with other factors. I think that this has to be affirmed. (2) From the beginning, the judgments of this Court firstly have been bringing into the question the maximum disparity between constituencies in terms of the number of voters per member in reviewing the constitutionality of the Provisions on the Apportionment of Seats. This only compares one constituency with the maximum number of the above voters to one constituency with the minimum number thereof. It can be said that since it is a review of whether there is a violation of the equality principle under Article 14 of the Constitution, focusing on to what extent differences arise between these constituencies is the correct analysis perspective. By the way, the view that disparity in terms of the value of votes should be measured as a whole while also taking into consideration indicators other than the maximum disparity between constituencies (including the views calculating a Gini coefficient by using values obtained by also taking into account the number of members per eligible voter in an election through proportional representation, as is the opinion of Justice KUSANO) may be useful as a tool used in an investigation by the Diet taking factors into consideration by exercising its wide discretionary power and coordinating various interests. However, I think that the maximum disparity should be used as a tool in a review by the Court as to whether the Provisions on the Apportionment of Seats violate the equality principle. Democracy in state affairs as premised by the Constitution cannot be realized if the Diet, as the highest organ of state power (Article 41), does not fully exercise its functions. Members of the Diet therefore must be duly elected representatives (Preamble), i.e., members elected as representatives of all the people (Article 43) through fair and equal elections. The right to vote is one of the most fundamental rights of the people under the Constitution, which is the exercise of the identical power of all voters to elect members to represent all the people in elections. However, as at the time of the Election, the fact itself that the value of a voter's vote in one constituency is only around one-third compared to that of a voter in another constituency makes it questionable whether it can be said that the members of the House are duly elected from the perspective of the equality principle (also in the case of the exercise of the power of judicial review by the court, it may be appropriate for the court to make no determination and leave the case to the democratic process depending on the type of constitutional right or the manner of the constraints on that right, and in order for the process to work normally, it is essential that the members of the Houses be duly elected), and for each voter, it is also unreasonable and unjustifiable to be disadvantaged for selecting a specific domicile. Therefore, although it is impossible to unequivocally make clear to what extent the maximum disparity between constituencies must widen to become Unconstitutional, at least in the case where the disparity widens to around 3 to 1, as at the time of the Election, the court at first must review the case with a suspicion that it is Unconstitutional. In such review, in the same manner as in the case where other constitutional rights are the issue, the type of, and manner of constraints on, that right and other factors must be taken into comprehensive consideration depending on the situation. Taking into account the importance of the right to vote as a fundamental right under the Constitution, unless it is found that there are unavoidable circumstances in relation to factors other than the maximum disparity, it should be said that it is extremely unequal to the extent the question of unconstitutionality arises. (3) The maximum disparity between constituencies in a regular election of members of the House of Councillors was approximately 5 to 1 over several decades and was reduced to around 3 to 1 by the 2015 Amendment Act. With regard to the Provisions on the Apportionment of Seats after this 2015 Amendment, while the 2017 Grand Bench Judgment made an evaluation to the effect that they could be deemed as attempts made to rectify the disparity in line with the purport of the 2012 Grand Bench Judgment, etc., the judgment has only held that "attempts made to rectify the disparity," and it is clear that no evaluation has been made to the effect that "rectification of the disparity has been achieved." This can be also understood from the fact that the 2017 Grand Bench Judgment held that Article 7 of the Supplementary Provisions of the 2015 Amendment Act provides that a fundamental review of the election system shall be continuously considered for the regular election to be held in 2019 taking into consideration issues including the rectification of the disparity between constituencies in terms of population per member based on how the House of Councillors should be, and a conclusion shall be reached without fail, and through those provisions, the direction and resolution of the legislature for further rectification of disparity in terms of the value of votes in the future were shown, and consideration was given to avoid recreating the sizable disparity of approximately 5 to 1, and then held that taking into consideration the above circumstances, it cannot be said to be Unconstitutional. It can be said that the reduction in the maximum disparity between constituencies to around 3 to 1 by the 2015 Amendment Act is deemed as attempts to considerably rectify the long-standing disparity in terms of the value of votes, and efforts made by the Diet for that should be highly evaluated. However, from a numerical perspective, I have to hesitate in making an evaluation to the effect that extreme inequality has been eliminated for the time being only because of the reduction in disparity being to that extent. The reason for such hesitation is that it cannot be said that a maximum disparity of around 3 to 1 is the level where Diet may be satisfied and rectification efforts may pause, even though it cannot be said to be significantly widening from that level. 3. Concerning efforts made by the Diet to rectify disparity I would like to further consider the efforts made by the Diet after the enforcement of the 2015 Amendment Act. (1) The 2015 Amendment Act put constituency merger into effect for the first time and amended the number of seats in some constituencies, and as a result, the maximum disparity between constituencies was reduced to 2.97 to 1. Furthermore, in the Supplementary Provisions, it was provided that a fundamental review of the election system shall be continuously considered for the regular election to be held in 2019 taking into consideration issues including the rectification of the disparity between constituencies in terms of population per member based on how the House of Councillors should be, and a conclusion shall be reached without fail (Article 7). After the 2016 Election (the maximum disparity at the time of that election was 3.08 to 1), the House of Councillors Reform Council was established, and the 2017 Grand Bench Judgment was rendered. While consultations on the reform of the election system had been continuously held at meetings of the same council, there were differences in opinion among the factions. The 2018 Amendment Act then increased the number of seats in the Saitama District by two, which reduced the maximum disparity between constituencies to 2.99 to 1, and at a meeting of the House of Councillors Special Committee for the Establishment of Political Ethics and the Election System, a supplementary resolution was adopted to the effect that "the reform of the election system for the House of Councillors in the future should be continuously considered in accordance with the purport of the Constitution, based on the role of the House of Councillors and how the House should be." After the 2019 Election (the maximum disparity at the time of that election was 3.00 to 1), the 2020 Grand Bench Judgment was rendered, and the House of Councillors Reform Council was established anew. Even after discussions for the reform of the election system held at meetings of the Research Commission on the Constitution in the House of Councillors in addition to those at the same council, the factions could not reach a consensus. The Election was then held with no legislative measures having been taken. (2) With regard to what kind of election system should be implemented for members of the House of Councillors, wide discretion is given to the Diet, and under the Constitution, there are only some constraints such as those to the effect that equality in the value of votes must not be violated (Article 14), universal adult suffrage is guaranteed (Article 15, paragraph (3)), secrecy of the ballot is guaranteed (Article 15, paragraph (4)), members of the Houses represent all the people (Article 43, paragraph (1)), there shall be no discrimination because of race, creed, sex, social status, family origin, education, property, or income with regard to the qualifications of members of the House and their electors (proviso to Article 44), and the term of office for members of the House shall be six years, and election for half the members shall take place every three years (Article 46). However, a numerical value for the maximum disparity between constituencies is not the only absolute criterion used when deciding on an election system, and such decision should be made by taking into consideration, and coordinating it with, other policy purposes or reasons the Diet can justifiably take into consideration, such as relations with the prefectural system as a system of local autonomy, changes in population nationwide, and social issues that exist from time to time. I can understand that it would be extremely difficult, for the Diet consisting of members whose positions depend on such decision, to fundamentally review and change the election system created by law and repeatedly amended by the Diet through various considerations. However, even so, it cannot be said to be appropriate for the court to exhibit an overly lenient attitude towards the inaction of the Diet in a judicial review by giving consideration to such difficulty when the right to vote as an important constitutional right is being impaired and such impairment is being disputed in a lawsuit. The Diet, with its wide discretionary power, has the responsibility for doing what is possible even if it is difficult to do so, and the role of the court in judicial review is to review whether laws and regulations enacted in such course conform to the Constitution. Also from the perspective of separation of powers, the court should also be cautious about giving too much consideration to the extent of such difficulty. While it is not objectively clear whether the fact that decreases in voter turnout and increases in the rate of invalid votes in the four prefectures subject to constituency merger introduced by partially changing the election system based on prefectural constituencies is linked to the introduction of constituency merger (recently, it has been pointed out that voter turnout also decreases in elections of members of local assemblies or heads of local governments although such elections must be familiar to voters), that fact is surely a concerning and worrisome matter from the perspective of the participation of voters in politics. On the other hand, whether the extremely low value of votes compared to other constituencies adversely affects the participation of voters in politics, including their voting behavior, is also a concern. Such adverse effects that may take place in connection with the implementation of any specific election system is a matter to be considered primarily by the Diet. Determining what kind of method should be used to rectify disparity in terms of the value of votes is left to the wide discretion of the Diet, and the court should also avoid suggesting any matter such as a specific method therefor from the perspective of separation of powers. (However, if the matter causing extreme disparity in terms of the value of votes is a specific system, for example, the rule of reserving one seat per prefecture for elections of members of the House of Representatives or the prefectural constituency system for elections of members of the House of Councillors, pointing out such problem is within the exercise of the power of judicial review as a matter of course.) The election system will be by nature inevitably be gradually reformed, and even if the court determines that the Provisions on the Apportionment of Seats are unconstitutional and thus invalid, it is impossible for the court to determine a demarcation it considers appropriate on its own. In election-related suits like this case, it can be understood that due to the reasons as above, the method of determining that "it is constitutional even while being in an Unconstitutional state," which is not usually used in other constitutional suits, has been accepted as a judicial precedent, and the situation that can also be described as a back-and-forth between the court and the Diet has been continuing. (3) Considering the circumstances after the enforcement of the 2015 Amendment Act with all of the above, while disparity in terms of the value of votes was considerably decreased by the 2015 Amendment Act, a fundamental review was considered for the regular election in 2019, and it was promised that a conclusion would be drawn, various difficulties emerged, and the 2018 Amendment Act was only a partial amendment that could be deemed to be in the process of gradual improvement. Thereafter, I unfortunately cannot avoid making an evaluation to the effect that the progress in not only legislative measures but also discussions towards the amendment to the system in the legislature as a whole has stalled. After the enforcement of the 2015 Amendment Act, the maximum disparity between constituencies has been around 3 to 1 with no significant widening, and this may be the cause of the slow progress in implementing measures to change the system. However, taking into account the importance of the right to vote as a fundamental right under the Constitution, a maximum disparity between constituencies of around 3 to 1 is a disparity to an extent not tolerated by the Constitution, in principle, as stated in the above 2. The rectification of the election system will inevitably be gradually realized, but even taking into consideration that point, it should be possible to rectify the system by promptly having thorough discussions to consider what various efforts should be made, based on the fact that the Constitution gives wide discretionary power to the Diet. 4. Conclusion As stated in the above 2. and 3., taking into comprehensive consideration the fact that the maximum disparity between constituencies of around 3 to 1 remains serious in terms of the equality principle, and the situation where no significant progress has been made regardless of the passing of approximately seven years since the enforcement of the 2015 Amendment Act through two regular elections of members of the House of Councillors, even though there are restraints on efforts made by the Diet for rectification as stated above, which are different from those on the election system for members of the House of Representatives, it is difficult to find that there are unavoidable circumstances for the maximum disparity between constituencies of around 3 to 1, and I think that at the time of the Election, it has to be said that the disparity between constituencies in terms of the value of votes under the Provisions on the Apportionment of Seats in this Case were extremely unequal to the extent the question of unconstitutionality arose. Even as stated above, given that the 2020 Grand Bench Judgment has determined that it cannot be said that the Provisions on the Apportionment of Seats in this Case were Unconstitutional (I have no objection to this determination), since it cannot be said that at the time of the Election, sufficient time has passed for rectification, it cannot be said that a failure to rectify disparity prior to the Election goes beyond the bounds of the Diet's discretionary power, and accordingly, I think that it cannot be said that the Provisions on the Apportionment of Seats in this Case are in violation of the Constitution. Therefore, the conclusion is the same as the majority opinion while the reasons therefor are different. The dissenting opinion of Justice UGA Katsuya is as follows: Contrary to the majority opinion, I think that it has to be regretfully said that the Provisions on the Apportionment of Seats in this Case are unconstitutional. The reasons therefor are as follows: 1. It is thought that the Constitution grants eligible voters not only the same number of voting rights as a mere formality but also voting rights of equal value. Accordingly, it is necessary to design the election system to be based on the equal value of votes as a default. Even if a certain disparity in terms of the value of votes is tolerated to the extent that it is unavoidable for public welfare, given that voting rights of equal value are guaranteed as fundamental rights, and that the foregoing is the basis of the democratic legitimacy of the Diet as the representative of the people under the principle of popular sovereignty, top priority must be given to the avoidance of extreme disparity in terms of the value of votes. While Article 47 of the Constitution provides that "electoral districts, method of voting and other matters pertaining to the method of election of members of both Houses shall be fixed by law," these provisions are also based on the premise that certain matters are fixed by law so as to meet the demand for equality in the value of votes as a principle under the Constitution. It is thought that the Diet will be accountable for the fact that disparity in terms of the value of votes is truly unavoidable. 2. The Constitution gives only the House of Representatives the power to pass a no-confidence resolution or reject a confidence resolution for the Cabinet (Article 69), permits the supremacy of the House of Representatives over the House of Councillors with regard to decisions regarding the budget (Article 60), approval required for the conclusion of treaties (Article 61), and the designation of the Prime Minister (Article 67), and provides that a bill which is passed by the House of Representatives, and upon which the House of Councillors makes a decision different from that of the House of Representatives, becomes a law when passed a second time by the House of Representatives by a majority of two-thirds or more of the members present (Article 59, paragraph (2)). However, when both Houses make different decisions from each other concerning the deliberation or approval of a bill which can be said to be the most central activity of the Diet, the condition where the House of Representatives passes the bill a second time by a majority of two-thirds or more of the members present is an extremely high hurdle. In the past, when a bill passed by the House of Representatives was amended by the House of Councillors, the bill was forwarded to and passed by the House of Representatives as it was amended by the House of Councillors, and resulted in a law enacted, in most cases. Under the circumstances in which a bill would not be passed by the House of Councillors unless it were amended as intended by the House of Councillors, there have been cases where the bill was amended by the House of Representatives after taking into consideration the intention of the House of Councillors. There are also cases where a bill was passed by the House of Representatives but rejected by the House of Councillors with the law not being enacted accordingly. In addition, given that it is often required that a law be enacted, amended, or repealed in order to execute a budget or treaty or, also in designating the Prime Minister, the prospect of obtaining majority support in the House of Councillors has to be taken into consideration, so it seems to be safe to say that in fact, power fairly close to that of the House of Representatives is given to the House of Councillors. Therefore, for the House of Councillors as well, the people must be guaranteed the basic right to cast votes of equal value; otherwise, the democratic legitimacy of the House of Councillors will inevitably be questioned. For the House of Councillors, the Constitution has adopted the system different from the House of Representatives on the point that it never dissolves, the term of office for members thereof shall be six years, and an election for half the members shall take place every three years (Article 46 of the Constitution). This itself is consistent with the demand for equality in the value of votes, and the 2012 Grand Bench Judgment, the 2014 Grand Bench Judgment, and the 2017 Grand Bench Judgment also held that it is difficult to find the reason for which the demand for equality in the value of votes is instantly relaxed for elections of members of the House of Councillors just because the elections are of members thereof. 3. At the time of the Election, there were three constituencies where the maximum disparity in terms of the value of votes exceeded 3 to 1, and the number of eligible voters in the three constituencies exceeded 21 million, which accounted for more than 20% of the total number of eligible voters. Moreover, such extreme disparity in terms of the value of votes occurs in the form of constantly lowering the value of the votes of eligible voters in densely populated areas. While the Diet can take into consideration various circumstances in designing the election system only within the extent to which disparity in terms of the value of votes is tolerated under the Constitution, such disparity in terms of the value of one vote at the time of the Election clearly goes beyond the extent tolerated under the Constitution, and no explanation has been made with regard to the fact that such disparity is truly unavoidable. I accordingly think it must be said that the Provisions on the Apportionment of Seats in this Case are in violation of the Constitution. (While in 2022(Gyo-Tsu)130, judgment of the Grand Bench of the Supreme Court of January 25, 2023, Minshu Vol. 77, No. 1, at 1, I have stated that the so-called theory of a reasonable period of time adopted by this Court in suits to seek the invalidation of elections is not appropriate in such suits although it may be a factor to consider in determining whether negligence existed or not in cases seeking compensation by the State, and that if the situation is Unconstitutional, it can be immediately determined to be unconstitutional, together with the reasons therefor, I think that there is no reason that determinations should differ between House of Councillor elections and House of Representative elections on this point.) Given that equality in the value of votes is the basis of the democratic legitimacy of the Diet, even if eligible voters whose vote value is relatively low are unaware of such value or accept it while being aware thereof, that fact does not allow the criteria for constitutional review to be relaxed as a matter of course. Since damage to the value of votes itself is a material violation of a fundamental right, it is thought that even if no financial disadvantage occurs in areas where the value of votes is low, this cannot be the reason that inequality in the value of votes going beyond the extent justifiable as a constraint due to public welfare can be tolerated. 4. While my view on whether the Provisions on the Apportionment of Seats in this Case conform to the Constitution is as stated above, I would like to amplify my statement here keeping in mind what may be pointed out about my view. (1) The role of the judicial branch in a suit that seeks the invalidation of an election is to determine whether the disparity in terms of the value of one vote at the time of the relevant election goes beyond the bounds acceptable under the Constitution, and it is needless to say that the determination of what kind of method should be used to eliminate the Unconstitutional state is left to the Diet. In my dissenting opinion on the 2020 Grand Bench Judgment, I exemplified several methods for eliminating the Unconstitutional state. They are not all methods for elimination, and it seems that from the start, it is impossible for the judicial branch to exhaustively consider all options. For example, after the 2017 Grand Bench Judgment, the Diet increased seats for members elected through proportional representation by four while maintaining existing merged constituencies and introducing the specific frame system. It is thought that by the use of the same system, it has become easier for local candidates in all four prefectures subject to constituency merger to be elected as members of the House of Councillors. However, it seems that such an option (I do not evaluate whether the option is appropriate here) was not been necessarily envisaged by the judicial branch at the time of the 2017 Grand Bench Judgment. In relation also to this point, it seems that in suits that seek the invalidation of elections, the point of whether it is practically difficult to realize any typical method the judicial branch may consider as a method for eliminating the Unconstitutional state, for reasons, such as political difficulties, other than the direct constraints under the Constitution, should not be taken into consideration as a reason for the constitutional state. If the judicial branch evaluates each option envisaged to amend the election system even in terms of a practical difficulty in realization, there are concerns about whether this may rather lead to excessive interference with legislative powers. (2) From the beginning, reform of the election system, whatever it may be, involves practical difficulties since it is related to the interests of each political party or member of the Diet, and accordingly, for the House of Councillors, the great inequality in the value of votes has not been rectified for an extended time. It can be said that due to the fact that the 2012 Grand Bench Judgment and the 2014 Grand Bench Judgment held that it is Unconstitutional, significant progress has been made towards the elimination of extreme inequality in the value of votes through finally overcoming great difficulties. On the other hand, in the 2017 Grand Bench Judgment, the fact that "the direction and resolution of the legislature for further rectification of disparity in terms of the value of votes in the future were shown" was regarded as one of the reasons for the constitutional state. However, thereafter, it cannot be evaluated that "further rectification of disparity in terms of the value of votes" has progressed, and in the 2020 Grand Bench Judgment, it is pointed out that "it cannot be said that these efforts were making great progress." After the 2020 Grand Bench Judgment held that it was in the constitutional state and until the Election, the rectification of disparity in terms of the value of votes did not progress, but rather, such disparity widened. It seems that this suggests that the concern of Justice HAYASHI Keiichi in the 2020 Grand Bench Judgment is not groundless in regard to the above holding being regarded as a message sent by this Court to the effect that the Court has tolerated the disparity of approximately 3 to 1 as, so to speak, the "bottom," and it is acceptable if the status quo is maintained and disparity does not greatly widen again, which results in the discontinuation of efforts to rectify the disparity in the future and the existence of a permanent disparity of 3 to 1. As stated above, the rectification of disparity in terms of the value of votes, by which method it may be made, involves practical difficulties to some extent. Accordingly, it is a concern that, unless this Court renders at least a judgment on the Unconstitutional state, rectification measures overcoming such difficulties would not be taken, and measures for increasing or decreasing seats only in select constituencies would be taken so as not to deviate too far from the disparity of approximately 3 to 1, and that the current situation where eligible voters whose value of one vote is only approximately one-third compared to constituencies with the maximum value of votes account for a significant proportion be fixed. (3) While a discussion to the effect that the creation of an election system that encourages the motivation of the people to vote should be intended in response to issues including a decrease in voter turnout in the four prefectures subject to constituency merger should be noted somewhat, it seems that residents in constituencies where the value of one vote has been constantly low will be less motivated to vote after becoming aware of such low value. Therefore, also from the perspective of intending to create an election system that encourages the motivation of people to vote, I think that equality in the value of votes cannot be disregarded. 5. Lastly, considering the validity of the Election, I determined that the Provisions on the Apportionment of Seats in this Case were unconstitutional in the 2020 Grand Bench Judgment, and however, stated that a judgment of dismissal by reason of special circumstances should be rendered since it could not necessarily be said that there had been enough discussions accumulated on a judgment of invalidation. However, although Article 7 of the Supplementary Provisions of the 2015 Amendment Act provided that a fundamental review of the election system shall be continuously considered for the regular election to be held in 2019 while taking into consideration issues including the rectification of the disparity between constituencies in terms of population per member based on how the House of Councillors should be, and a conclusion shall be reached without fail, the "fundamental review of the election system" was not carried out in the Amendment of 2018, and only a supplementary resolution was adopted stating that the reform of the election system for the House of Councillors in the future should be continuously considered in accordance with the purport of the Constitution, based on the role of the House of Councillors and how the House should be. Thereafter from May 2021 to June 2022, although meetings of the House of Councillors Reform Council were held 13 times with the reform of the election system as one of the agenda items, in the report of the House of Councillors Reform Council compiled in the same month, the specific direction of reform regarding how the election system for the House of Councillors should be was not shown, and it was only stated that the Council desired that the following Council further deepen discussions. Taking into account such circumstances, it seems it is highly likely that the disparity between constituencies in terms of the value of votes under the Provisions on the Apportionment of Seats concerning members (elected in constituencies) of the House of Councillors will remain in the future almost as is. Therefore, this time, I think that rather than a judgment of dismissal by reason of special circumstances, a judgment holding that the Election is invalid has to be rendered. However, a reasonable period of time for the rectification of the Unconstitutional state should be allowed, rather than the rendering of a judgment immediately invalidating the Election. Accordingly, I think that invalidation shall take effect two years after the judgment rendered on this case with no retroactive effect, and, even if the Election is held invalid in the future, deliberations and votes at Diet meetings by members elected in the Election should not be affected by the judgment of invalidation.

Justice TOKURA Saburo Justice YAMAGUCHI Atsushi Justice MIYAMA Takuya Justice MIURA Mamoru Justice KUSANO Koichi Justice UGA Katsuya Justice HAYASHI Michiharu Justice OKAMURA Kazumi Justice NAGAMINE Yasumasa Justice YASUNAMI Ryosuke Justice WATANABE Eriko Justice OKA Masaaki Justice SAKAI Toru Justice IMASAKI Yukihiko Justice OJIMA Akira