2025.09.26

2025(Gyo-Tsu)155

Minshu Vol. 79, No. 6

(Civil Case) Judgment on the constitutionality of the provisions of Article 13, paragraph (1) and Appended Table 1 of the Public Offices Election Act on the demarcation of constituencies for members of the House of Representatives to be elected from single-seat constituencies

Case seeking invalidation of an election

Judgment of the Second Petty Bench, dismissed

Tokyo High Court, Judgment of February 13, 2025

It cannot be said that the demarcation of constituencies for members of the House of Representatives to be elected from single-seat constituencies as provided in Article 13, paragraph (1) and Appended Table 1 of the Public Offices Election Act was in a state contrary to the constitutional requirement of equality in the value of votes at the time of the general election of members of the House of Representatives held on October 27, 2024, and it thus cannot be said that the aforementioned provisions are in violation of Article 14, paragraph (1) or other provisions of the Constitution. (There is an opinion.)

Article 14, paragraph (1), Article 15, paragraphs (1) and (3), Article 43, paragraph (1), and Article 44 of the Constitution; Article 13, paragraph (1) and Appended Table 1 of the Public Offices Election Act

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

Concerning the reasons for final appeal stated by the appellants who are also the counsel for final appeal, YAMAGUCHI Kuniaki, KUNIBE Toru, and MISAO Michihiko, and the reasons for final appeal stated by the subagent for final appeal, NAGASHIMA Kenya 1. This case is a suit to seek invalidation of an election that was filed by the appellants, who are voters in Tokyo 5th, 8th, 28th, and 30th Districts, in relation to the general election of members of the House of Representatives held on October 27, 2024 (hereinafter referred to as the "Election"), arguing that as the provisions of the Public Offices Election Act on the demarcation of constituencies for elections of members of the House of Representatives to be elected from single-seat constituencies (such members and elections are referred to below respectively as "members to be elected from single-seat constituencies" and "elections in single-seat constituencies") are unconstitutional and thus invalid, and accordingly, the elections in the aforementioned constituencies in the Election based on said provisions are also invalid. 2. The outline of facts lawfully determined by the court of prior instance is as follows. (1) The Public Offices Election Act adopts the combination of single-seat constituencies and proportional representation as the election system for members of the House of Representatives, and it provides that the constant number of seats of members of the House of Representatives is 465, of which 289 are members to be elected from single-seat constituencies and 176 are members to be elected by proportional representation (Article 4, paragraph (1)). Regarding elections in single-seat constituencies, 289 constituencies are set up nationwide, and one member is to be elected from each constituency (Article 13, paragraph (1) and Appended Table 1 of the same Act; these provisions throughout the period before and after the amendments mentioned later are collectively referred to below as the "provisions on demarcation"). Regarding an election of members to be elected by proportional representation (hereinafter referred to as an "election by proportional representation"), 11 constituencies are set up nationwide, and the predetermined number of members are to be elected in each constituency (Article 13, paragraph (2) and Appended Table 2 of the same Act). In a general election, elections in single-seat constituencies and an election by proportional representation are held simultaneously, and each voter is to have one vote in the elections in the relevant single-seat constituencies and the election by proportional representation, respectively (Articles 31 and 36 of the same Act). The Act for Establishment of the Council on Demarcation of Constituencies for Members of the House of Representatives (referred to below as the "Act for Establishment of the Demarcation Council") provides that the Council on Demarcation of Constituencies for Members of the House of Representatives (hereinafter referred to as the "Demarcation Council") is to study and deliberate the revision of constituencies for members to be elected from single-seat constituencies and to prepare a draft revision of the constituencies (hereinafter merely referred to as a "draft revision") and recommend it to the Prime Minister when it finds necessary (Article 2). In the same Act: [i] Article 4, paragraph (1) provides that the Demarcation Council is to make this recommendation within one year from the date on which the population based on a population census implemented every ten years pursuant to the provisions of the main clause of Article 5, paragraph (2) of the Statistics Act (hereinafter referred to as a "large-scale population census") is first publicly notified in an official gazette; and [ii] Article 4, paragraph (2) provides that notwithstanding the provisions of paragraph (1), regarding the population of the Japanese people in each constituency according to the result of a population census, which is implemented in a year that falls under the fifth year from the year of the preceding large-scale population census pursuant to the provisions of the proviso to Article 5, paragraph (2) of the Statistics Act, if the figure obtained by dividing the population in the most populated constituency by the population in the least populated constituency is 2 or more, the Demarcation Council is to make the aforementioned recommendation within one year from the date on which the population according to the result of the relevant population census is first publicly notified in an official gazette. Article 3 of the Act for Establishment of the Demarcation Council provides as follows regarding the criteria for preparing a draft revision: [i] paragraph (1) provides that the Demarcation Council must prepare a draft revision in a reasonable way in comprehensive consideration of circumstances, such as administrative districts, geographical features, and traffic, while keeping balance in population (in that Article, meaning the population of the Japanese people according to the result of a recent population census) in each constituency and ensuring that the figure obtained by dividing the population in the most populated constituency by the population in the least populated constituency is less than 2; [ii] paragraph (2) provides that in preparing a draft revision to be recommended under the provisions of Article 4, paragraph (1) of the same Act, the number of constituencies for members to be elected from single-seat constituencies within the area of each prefecture is to be the figure obtained by dividing the population of each prefecture by a criterion divisor for single-seat constituencies (meaning a divisor for which the sum of the figures obtained by dividing the population of each prefecture by that divisor (if a fraction less than 1 arises, the fraction is to be rounded up to 1) matches a figure corresponding to the constant number of seats of members to be elected from single-seat constituencies) (if a fraction less than 1 arises, the fraction is to be rounded up to 1) (generally referred to as the "Adams' method"); [iii] paragraph (3) provides that in preparing a draft revision to be recommended under the provisions of Article 4, paragraph (2) of the same Act, the number of constituencies for members to be elected from single-seat constituencies in the area of each prefecture is not to be changed (the procedure for revision of constituencies under the provisions of Articles 2 through 4 of the same Act, including the criteria for preparing a draft revision, is referred to below as the "Demarcation System"). (2) Regarding constituencies for members to be elected from single-seat constituencies, the Demarcation Council prepared a draft revision based on the result of the large-scale population census implemented as of October 1, 2020 (referred to below as the "2020 Population Census"), to change the constant number of seats for members to be elected from single-seat constituencies by adding 10 seats in total in five prefectures and reducing one seat each in 10 prefectures, and revise the demarcation in 140 constituencies in 25 prefectures, and on June 16, 2022, the council submitted a recommendation on this draft revision to the Prime Minister. Following this, on November 18, 2022, Act No. 89 of 2022, which provides that the demarcation of constituencies prescribed in the provisions on demarcation is to be revised as specified in the draft revision (referred to below as the "2022 Amendment Act"), was enacted (below, the provisions on demarcation as amended by the 2022 Amendment Act are referred to as the "Provisions on Demarcation," and the demarcation of constituencies prescribed in the Provisions on Demarcation is referred to as the "Demarcation of Constituencies," respectively). (3) The House of Representatives was dissolved on October 9, 2024, and the Election was held on October 27, 2024, based on the Demarcation of Constituencies. Under the Demarcation of Constituencies, the maximum disparity between constituencies in terms of population of Japanese people (referred to below simply as "population") was 1.999 to 1 based on the result of the 2020 Population Census. With regard to the disparity between constituencies in terms of the number of voters on the very day of the Election, the disparity between the constituency with the largest number of voters (Hokkaido 3rd District) and the constituency with the smallest number of voters (Tottori 1st District) was 2.059 to 1, and in 10 constituencies, the disparity compared to the constituency with the smallest number of voters was 2 to 1 or higher. 3. (1) It is understood that the Constitution requires equality in the substance of the right to vote, or in other words, equality in the value of votes. On the other hand, equality in the value of votes is not the absolute criterion for determining the design of an election system, but it must be realized in a harmonized manner in relation to other policy purposes and grounds that the Diet is duly authorized to consider. The Constitution provides that the constant number of seats, the constituencies, the method of voting and other matters concerning elections of members of the respective Houses of the Diet shall be specified by law (Article 43, paragraph (2) and Article 47), thus allowing the Diet to have broad discretion to determine the design of the election system. It should be said that in the case of adopting a system for holding an election of members of the House of Representatives by dividing the entire area of the country into a number of constituencies, the Constitution requires that securing equality in the number of voters or population per member to the greatest possible extent should be the most important and the essential criterion for determining the apportionment of seats and the demarcation of constituencies among all features of the design of an election system, but it is understood that the Constitution also allows the Diet to take other factors into consideration as long as it is reasonable to do so. When specifically establishing constituencies, it is required that municipalities or other administrative districts, which were created by subdividing prefectures, be used as basic units, and that, while taking into account various factors, including the size, population density, composition of residents, transportation conditions, and geographical situations, of the respective areas, efforts be made to ensure that the will of the people will be reflected properly in the process of carrying out national politics; and at the same time, it is necessary to reconcile this with the requirement of securing equality in the value of votes. Consequently, determination as to the constitutionality of an election system is to be made by examining whether or not, even when all of these circumstances are comprehensively taken into account, the election system is justified as a reasonable exercise of the discretion vested in the Diet. Said features of the design of the election system specifically determined by the Diet should be judged to be unconstitutional only where these features run counter to said constitutional requirement, go beyond the bounds of the aforementioned discretion vested in the Diet even in consideration of such discretion, and are found unacceptable. (2) From the perspective mentioned above, the constitutionality of the Provisions on Demarcation and the Demarcation of Constituencies based thereon is reviewed below. A. Under the Demarcation System prescribed in the Act for Establishment of the Demarcation Council, the constituencies for members to be elected from single-seat constituencies (referred to below simply as "constituencies") are established as follows. Based on the result of a large-scale population census implemented every ten years, the Demarcation Council apportions seats in each prefecture by the Adams' method, one of the methods based on a calculation proportional to population, demarcates constituencies in a manner that the disparity between constituencies in terms of population would be less than 2 to 1, and thereby prepares a draft revision. If, based on the result of a population census implemented in a year that falls under the fifth year from the year of the large-scale population census, the maximum disparity between constituencies in terms of population is 2 to 1 or higher, the Demarcation Council prepares a draft revision to rectify the disparity by demarcating constituencies based on such result so that the disparity would be less than 2 to 1, without changing the number of seats apportioned in each prefecture. The Demarcation System operated as such can be considered to have been established on the assumption that even after the constituencies are revised, the disparity between constituencies in terms of the value of votes can expand due to the subsequent population movement, and with the aim of reducing the disparity between constituencies in terms of the value of votes to a certain degree and maintaining such state in a stable manner, while also taking into consideration the stability of the election system. Thus, the Demarcation System should be justified as a reasonable system that specifies a procedure for revising constituencies while regarding equality in the value of votes as the most important and essential criterion and taking into consideration other factors that the Diet is allowed to take into consideration. B. The Election was held based on the demarcation of constituencies prescribed in the Provisions on Demarcation as amended by the 2022 Amendment Act (the Demarcation of Constituencies). According to the facts mentioned above, it can be said that the 2022 Amendment Act is a law to revise constituencies as specified in the draft revision that was prepared by the Demarcation Council under the Demarcation System by determining the apportionment of seats and demarcation of constituencies in each prefecture based on the result of the 2020 Population Census and according to the criteria prescribed in Article 3, paragraphs (1) and (2) of the Act for Establishment of the Demarcation Council. Under the Demarcation of Constituencies, the maximum disparity between constituencies in terms of population was 1.999 to 1 based on the result of the 2020 Population Census, and on the very day of the Election, the disparity between constituencies in terms of the number of voters was 2.059 to 1 and the disparity compared to the constituency with the smallest number of voters was 2 to 1 or higher in 10 constituencies. However, as mentioned above, the Demarcation System was established on the assumption that even after the constituencies are revised, the disparity between constituencies in terms of the value of votes can expand due to the subsequent population movement, and such system is found to be reasonable. Regarding the disparity between constituencies in terms of the value of votes at the time of the Election, there is no circumstance suggesting that the disparity expanded due to a factor other than a natural population movement, and the degree of expansion under the Demarcation of Constituencies cannot be considered to be remarkable. Therefore, it cannot be said, based on the aforementioned state of disparity between constituencies in the value of votes, that the Demarcation of Constituencies had fallen into a state contrary to the constitutional requirement of equality in the value of votes as of the time of the Election. (3) Therefore, it cannot be said that the Demarcation of Constituencies prescribed in the Provisions on Demarcation was in a state contrary to the constitutional requirement of equality in the value of votes at the time of the Election, and it thus cannot be said that the Provisions on Demarcation are in violation of Article 14, paragraph (1) or other provisions of the Constitution. Incidentally, on the grounds of the first paragraph of the Preamble, Article 43, paragraph (1), or other provisions of the Constitution, the appellants also argue that under representative democracy, members of the House of Representatives need to be elected by the same number of population, respectively, and that the Election is invalid as it is contrary to that necessity. However, it is obvious from the above that the appellants' arguments are groundless. (4) The reasoning presented above is clear in light of the purports of the series of Grand Bench judgments previously handed down as follows: 1999 (Gyo-Tsu) 7, the judgment of the Grand Bench of the Supreme Court of November 10, 1999, Minshu Vol. 53, No. 8, at 1441; 1999 (Gyo-Tsu) 35, the judgment of the Grand Bench of the Supreme Court of November 10, 1999, Minshu Vol. 53, No. 8, at 1704; 2006 (Gyo-Tsu) 176, the judgment of the Grand Bench of the Supreme Court of June 13, 2007, Minshu Vol. 61, No. 4, at 1617; 2018 (Gyo-Tsu) 153, the judgment of the Grand Bench of the Supreme Court of December 19, 2018, Minshu Vol. 72, No. 6, at 1240; and 2022 (Gyo-Tsu) 130, the judgment of the Grand Bench of the Supreme Court of January 25, 2023, Minshu Vol. 77, No. 1, at 1. It also cannot be said that the reasons given in the judgment in prior instance are defective, as argued in the reasons for final appeal. 4. For the reasons described above, the determination by the court of prior instance to the effect that it cannot be said that the Provisions on Demarcation were in violation of the Constitution at the time of the Election can be upheld. None of the appellants' arguments is acceptable. Accordingly, the Court unanimously decides as set forth in the main text of the judgment. There is an opinion by Justice TAKASU Junichi. The opinion by Justice TAKASU Junichi is as follows. 1. Introduction Contrary to the majority opinion, I consider that the disparity between constituencies in terms of the value of votes under the Provisions on Demarcation as amended by the 2022 Amendment Act amounted to inequality to the extent that the question of unconstitutionality arose (what is generally called "unconstitutional state") at the time of the Election. The majority opinion states that the review of the constitutionality of the Demarcation of Constituencies should be made according to the criteria for judgment described in 3. (1) of the majority opinion, and then affirms the constitutionality of the Demarcation System, holding that the Demarcation System was established on the assumption that even after the constituencies are revised, the disparity between constituencies in terms of the value of votes can expand due to the subsequent population movement, and with the aim of reducing the disparity between constituencies in terms of the value of votes to a certain degree and maintaining such state in a stable manner, while also taking into consideration the stability of the election system, and in conclusion, determines that the Demarcation of Constituencies established under the Demarcation System was in a constitutional state. I have no disagreement with the view that the abovementioned criteria for judgment should be applied when reviewing the constitutionality of the Demarcation of Constituencies. On the other hand, although I do not deny that the mechanism for revision of constituencies under the Demarcation System is in itself found to be reasonable to a certain extent, its reasonableness should be supported by a certain premise. I must say that due to lack of such premise, the Demarcation of Constituencies established through the revision under the 2022 Amendment Act and the Election held based on that demarcation cannot be evaluated to be reasonable in relation to the equality in the value of votes, which is required under the Constitution, and in this respect, I disagree with the majority opinion. In order to make this point clear, I will discuss in the section below the premise required to make the Demarcation System reasonable and the specific evaluation of the Demarcation of Constituencies with such premise taken into account. 2. Premise required to make the Demarcation System reasonable The Demarcation of Constituencies was newly established under the 2022 Amendment Act, and in this suit, the elections in single-seat constituencies held for the first time under the Demarcation of Constituencies is disputed. Under Article 3, paragraph (1) of the Act for Establishment of the Demarcation Council, in revising the demarcation of constituencies, the Demarcation Council is required to ensure that the maximum disparity between constituencies in terms of population (the maximum disparity between constituencies in terms of population and the maximum disparity between constituencies in terms of the number of voters are collectively referred to below as the "maximum disparity") would not be 2 to 1 or higher based on the population according to the result of the 2020 Population Census, and compliance with what is provided in the same Act is absolutely necessary for maintaining the constitutional equality in the value of votes. Under the Demarcation of Constituencies, the maximum disparity based on the result of the 2020 Population Census was 1.999 to 1, which cannot be judged to be in violation of the provisions of Article 3, paragraph (1) of the Act for Establishment of the Demarcation Council. However, the abovementioned maximum disparity is just as close to 2 to 1, and in consideration of the status of constant population movement, it should be said, as mentioned in 3. below, that at the time when the Demarcation of Constituencies was established, it was expected that the maximum disparity would almost certainly reach 2 to 1 or higher over a short time after the revision under that demarcation (in fact, at the time of the Election, the maximum disparity under the Demarcation of Constituencies was as high as 2.059 to 1 and the disparity was 2 to 1 or higher in as many as 10 constituencies). I agree with the majority opinion in considering that the Diet is granted broad discretion to determine the apportionment of seats and demarcation of constituencies. Having said that, if the Demarcation Council recommends a draft revision based on which it is expected that the maximum disparity will almost certainly reach 2 to 1 or higher over a short time after the revision, and the Diet amends the provisions on demarcation in line with that draft revision, I must say that it is questionable whether this can be justified as a reasonable exercise of the discretionary power vested in the Diet. The Demarcation System was institutionalized for the purpose of maintaining equality in the value of votes, which is constitutionally guaranteed, under an election system premised on the constituency system, and it is capable of reasonably responding to the population movement between constituencies in that it adopts the criteria for demarcation so that the maximum disparity would be less than 2 to 1 and legislates for the periodical revision of the provisions on demarcation. However, in order to enable the Demarcation System to effectively respond to the population movement after the revision of the demarcation of constituencies, it is first and foremost necessary to ensure that a draft revision itself is prepared appropriately. In this respect, even where the demarcation of constituencies is established in the process of preparing a draft revision so that the maximum disparity would be less than 2 to 1 as provided in Article 3, paragraph (1) of the Act for Establishment of the Demarcation Council, if it is expected under such demarcation that the maximum disparity will almost certainly reach 2 to 1 or higher over a short time, this may not be in violation of the relevant provisions of the same Act, but I consider that the elections in single-seat constituencies held under the demarcation of constituencies established in this manner do not satisfy the constitutional requirement of equality in the value of votes. In other words, in order to ensure the reasonableness of the Demarcation System, first of all, the demarcation of constituencies initially established must satisfy the constitutional requirement of equality in the value of votes. If the initially established demarcation of constituencies can never be evaluated as satisfying the constitutional requirement of equality in the value of votes, it must be said that the elections in single-seat constituencies held based on the relevant provisions on demarcation can never be evaluated to be constitutional, even though the Act for Establishment of the Demarcation Council provides for the rule for revising the demarcation of constituencies every ten or five years. For the reasons stated above, even where the demarcation of constituencies is established based on the result of a population census so that the maximum disparity would be less than 2 to 1 as of that base point in time, if the demarcation of constituencies was in a state in which it was expected that the maximum disparity would almost certainly reach 2 to 1 or higher over a short time, I consider that the elections in single-seat constituencies held under such demarcation of constituencies lack the premise of reasonableness that must be secured by the Demarcation System and therefore that they amount to elections held under an unconstitutional demarcation of constituencies. 3. Evaluation of the Demarcation of Constituencies The next question to be discussed is in what circumstances the demarcation of constituencies would be evaluated to have been in a state in which it was expected that the maximum disparity would almost certainly reach 2 to 1 or higher over a short time. Although it is difficult to clarify the criteria for evaluating this point, the following circumstances have been made clear in this suit. First, regarding the demarcation of constituencies newly established through the revision, the maximum disparity based on the result of the population census that had been used as the basis for the revision was extremely close to 2 to 1. Second, the maximum disparity under that demarcation of constituencies at the time of the first general election of members of the House of Representatives held after the revision actually reached 2 to 1 or higher. If such circumstances exist, the demarcation of constituencies should basically be judged to have been in a state in which it was expected that the maximum disparity would almost certainly reach 2 to 1 or higher over a short time, and it is appropriate to understand that the elections in single-seat constituencies held based on such demarcation of constituencies were held based on the unconstitutional demarcation of constituencies. If these circumstances are found but there are other circumstances, such as where any special event that was not expected at the time of the revision of the demarcation of constituencies has occurred by the time of an election and that event has caused the maximum disparity at the time of the election to reach 2 to 1 or higher, as an exception, the demarcation of constituencies would not be judged to be unconstitutional. However, such other circumstances would be found only in an extremely exceptional case. I examine the Demarcation of Constituencies based on what I have stated above. As mentioned above, the maximum disparity based on the result of the 2020 Population Census was 1.999 to 1, extremely close to 2 to 1, which is a level where the maximum disparity could reach 2 to 1 or higher even due to a slight population movement that might occur over a short time after the time of the 2020 Population Census (October 1, 2020). The maximum disparity at the time of the Election under the Demarcation of Constituencies was 2.059 to 1, actually exceeding 2 to 1. In addition, there are no circumstances suggesting that any special event that had not been expected at the time of the revision of the demarcation of constituencies occurred during the period extending from after the time of the 2020 Population Census until the time of the Election. Consequently, it can be said that at the time of the revision, the Demarcation of Constituencies was in a state in which it was expected that the maximum disparity would almost certainly reach 2 to 1 or higher over a short time, and it should be said that the disparity between constituencies in terms of population at the time of the Election was in a state in which it fails to satisfy the requirement of equality in the value of votes that is constitutionally guaranteed. This is the reason why I consider that the elections in single-seat constituencies in the Election were held under the demarcation of constituencies that was in an unconstitutional state. 4. Relationship with the 2023 Grand Bench Judgment The recent precedent of this court, 2022 (Gyo-Tsu) 130, judgment of the Grand Bench of the Supreme Court of January 25, 2023, Minshu Vol. 77, No. 1, at 1 (referred to below as the "2023 Grand Bench Judgment"), reviewed the demarcation of constituencies prescribed in the provisions on demarcation amended under Act No. 49 of 2016 as amended by Act No. 58 of 2017 (referred to below as the "2017 Demarcation of Constituencies"), and made a decision on the premise that the constitutionality of the demarcation of constituencies could be denied only when there are special circumstances, such as where the disparity between constituencies in terms of the value of votes at the time of an election was caused due to a new factor that is incompatible with the constitutional requirement of equality in the value of votes or where the degree of expansion of the disparity is so remarkable that the election system becomes unreasonable. Just to make sure, I give an additional comment to show that my opinion presented in 2. and 3. above is consistent with the 2023 Grand Bench Judgment. I consider that the decision in the 2023 Grand Bench Judgement as described above is basically valid under the Demarcation System as well, but, as a precondition for this, the recommendation under Article 2 of the Act for Establishment of the Demarcation Council and the demarcation of constituencies newly established through the amendment of the provisions on demarcation based on that recommendation must be appropriate for maintaining the requirement of equality in the value of votes that is constitutionally guaranteed. More specifically, as mentioned in 2. above, it goes without saying that the revision of the demarcation of constituencies should be conducted periodically pursuant to the provisions of Article 3, paragraph (1) and Article 4, paragraphs (1) and (2) of the Act for Establishment of the Demarcation Council so that the maximum disparity based on the result of a population census would be less than 2 to 1. Even where the demarcation of constituencies newly established through the revision would be one where the maximum disparity would be less than 2 to 1 based on the result of the population census that was used as the basis for the revision, if it was expected at the time of the revision that the maximum disparity would almost certainly reach 2 to 1 or higher over a short time, the newly established demarcation of constituencies should be judged to be in an unconstitutional state, regardless of the criteria provided in the Act for Establishment of the Demarcation Council. On the other hand, if there are no such circumstances, and the newly established demarcation of constituencies is judged to have been in compliance with the constitutional requirement of equality in the value of votes at the time of the revision, it is allowable under the Constitution to rectify the disparity through the revision of the demarcation of constituencies conducted every ten or five years under the Demarcation System, unless there are special circumstances, such as where the disparity subsequently expanded due to a new factor that is incompatible with the constitutional requirement of equality in the value of votes or where the degree of expansion of the disparity is so remarkable that the election system becomes unreasonable, exactly as indicated in the 2023 Grand Bench Judgment. In fact, the maximum disparity under the 2017 Demarcation of Constitution, which was discussed in the 2023 Grand Bench Judgment, was 1.956 to 1 based on the result of the population census conducted in 2015, and it was still 1.979 to 1 at the time of the first general election of members of the House of Representatives held after that census (October 22, 2017). Thus, we cannot go so far as to say that the 2017 Demarcation of Constituencies was, at the time of the relevant revision, in a state in which it was expected that the maximum disparity would reach 2 to 1 or higher over a short time, and is judged to have been in a constitutional state. Accordingly, even if the maximum disparity reached 2 to 1 or higher for elections in single-seat constituencies in the next general election of members of the House of Representatives (held on October 31, 2021), it was possible to review its constitutionality precisely according to the criteria for judgment presented in the 2023 Grand Bench Judgment. On the other hand, in the case of the elections of single-seat constituencies in the Election, the demarcation of constituencies newly established under the 2022 Amendment Act was in an unconstitutional state in the first place, and they were in a different situation from the general elections in 2017 and 2021 mentioned above. Hence, my opinion does not run counter to the 2023 Grand Bench Judgment. Incidentally, the majority opinion cites some other Grand Bench judgments of this court in addition to the 2023 Grand Bench Judgment. Among them, 2018 (Gyo-Tsu) 153, the judgment of the Grand Bench of the Supreme Court of December 19, 2018, Minshu Vol. 72, No. 6, at 1240, addressed the elections in single-seat constituencies held under the 2017 Demarcation of Constituencies as in the case of the 2023 Grande Bench Judgment, and that demarcation of constituencies could be judged to have been in a constitutional state even based on my opinion. Other Grand Bench judgments had been rendered before the amendment of the Act for Establishment of the Demarcation Council by Act No. 49 of 2016, which adopted the Adams' method and introduced the provisions that the maximum disparity should be kept less than 2 to 1, and therefore, I do not find it necessary to provide an explanation about these Grand Bench judgments in relation to my opinion. 5. Conclusion As mentioned in 2. and 3. above, it must be said that the disparity between constituencies in terms of the value of votes in the elections in single-seat constituencies held under the Demarcation of Constituencies amounted to inequality to the extent that the question of unconstitutionality arose (unconstitutional state) at the time of the Election. Nevertheless, considering that the Election was the first general election of members of the House of Representatives held under the demarcation of constituencies newly established under the 2022 Amendment Act and that the existence of the unconstitutional state was made clear because it was confirmed that the maximum disparity was 2 to 1 or higher at the time of the Election, it is unrealistic to expect that the Diet would have additionally revised the demarcation of constituencies by that time. It cannot be said that by the time of the Election, sufficient time had passed to rectify the unconstitutional state, nor can it be said that the Diet's failure to rectify the disparity prior to the Election goes beyond the bounds of its discretionary power, and accordingly, we cannot go so far as to say that the Provisions on Demarcation are in violation of Article 14, paragraph (1) or other provisions of the Constitution. Consequently, I agree with the conclusion of the majority opinion, although based on different reasons. Going forward, the next population census will be held in 2025, and if a recommendation under Article 4, paragraph (2) of the Act for Establishment of the Demarcation Council is necessary as a result of this population census, it is expected that the Demarcation Council will recommend a draft revision based on that result by the prescribed deadline and the Public Offices Election Act will be amended accordingly. I believe that the legislators must keep firmly in mind that in the amendment process, they must avoid making the demarcation of constituencies fall into a state in which it is expected that the maximum disparity will almost certainly reach 2 to 1 or higher over a short time.

Justice OJIMA Akira Justice MIURA Mamoru Justice OKAMURA Kazumi Justice TAKASU Junichi