In the local elections held on the 3rd, a shortage of ballots at some polling stations in Seoul led voters to wait for long periods or give up and go home, and the situation is expanding into an issue of government compensation. The legal community says that, considering the vote margin in the Seoul mayoral race, it is unlikely that the election will be invalidated, but whether voters who were unable to exercise their voting rights can claim damages for emotional harm is a separate question.
According to the National Election Commission on the 5th, as of 6:20 p.m. on the 3rd, ballot shortages occurred at 14 polling stations, including 12 in Songpa District, one in Gangnam District and one in Gwangjin District. It explained that in Songpa District, ballots were printed at about 50% of the number of eligible voters. Voting was delayed at some polling stations, and there were also claims that some voters gave up after waiting for a long time.
In the Seoul mayoral election, the vote gap between Oh Se-hoon of the People Power Party (winner) and Chong Won-o of the Democratic Party of Korea was tallied at 53,465 votes. For this reason, many analysts say it is unlikely that the election result itself will be overturned. Still, separate from whether it affected the outcome, there are arguments that if an individual voter was unable to exercise the right to vote due to the commission's negligence, it could constitute an issue of government compensation.
◇ Government compensation different from election invalidation… "Assess individual harm"
The basis for a government compensation claim is Article 2 of the State Compensation Act. It provides that if a public official, while performing official duties, intentionally or negligently violates laws and causes damage to another, the state or a local government bears liability for compensation. If the election commission in charge of election affairs failed to prepare a sufficient number of ballots, and as a result a voter could not vote, compensation liability could be at issue.
Attorney Kim Yeon-gi of Chungjeong, who has handled numerous election-related cases, said, "Election invalidation and government compensation are separate," noting, "For invalidation, what matters is whether the result was affected because it concerns the validity of the election itself, whereas government compensation is about making whole the harm suffered by an individual voter." Kim added, "The fact that a large vote gap makes invalidation difficult is not directly related to whether government compensation is granted."
In this matter, the issues include whether the commission's preparation and distribution of ballots constitute the performance of official duties, whether preparing fewer ballots than the number of eligible voters can be evaluated as negligence in duty or unlawful performance of duty, and whether, as a result, a voter was actually unable to exercise the right to vote.
Attorney Yang Hong-seok of Igong said, "The very fact that ballots were insufficient means the commission failed to perform its duties properly," adding, "Even without looking to intent to violate the law, gross negligence can be sufficiently recognized." He viewed the ballot as a basic element of election affairs that must be sufficiently prepared in advance, and said that the very method of supplementing shortages after the fact on site or transporting ballots could serve as grounds for a finding of unlawfulness.
◇ The key is voters who 'arrived before closing but couldn't stamp'
Government compensation is not automatically recognized. It is not enough that a polling place was chaotic or that the wait was long. It must be specifically proven whether the voter arrived at the polling station before closing, whether the voter gave up voting because of the commission's shortage of ballots or inadequate guidance on site, and whether actual harm resulted.
Kim said, "The crux is causation and the occurrence of harm," adding, "It must be proven that the person was a legitimate voter who arrived at the polling station before closing and that the person actually could not vote and left because of the commission's shortage of ballots or inadequate guidance."
In actual litigation, on-site video, queue tickets, the time of identity verification, witness statements and CCTV can serve as key materials. Yang said, "It is important to prove that you went to the polling station but came out without voting," adding, "Photos of queue tickets or on-site photos and videos can also be materials for assessing harm and causation."
Here, proximate causation becomes an issue. Proximate causation does not merely mean that harm happened later in time; it refers to a relationship in which, absent the commission's mistake, such harm ordinarily would not have occurred.
For example, a voter who arrived before closing but went home without voting because there were no ballots may have relatively clear causation. By contrast, a voter who received a queue ticket and, even if late, finished voting may find it difficult to have harm recognized for being unable to exercise the right to vote.
◇ Will damages for infringement of voting rights be recognized? The amount may be 'symbolic'
The nature of the harm is also at issue. The right to vote is a constitutional fundamental right that is hard to convert into money. For this reason, in actual lawsuits, compensation for emotional harm—namely, whether damages for mental distress are recognized—will likely be the focus rather than property damage. Damages for mental distress are not a system separate from government compensation; they are one of the compensatory items that can be recognized in a government compensation claim.
Kim said, "Courts do not assign an objective monetary value to a single vote; rather, they will set damages by considering the gravity of the infringement of the right to vote, how the infringement occurred and the waiting time, and the degree of the commission's negligence," adding, "Given the nature of the claim, even if granted, the amount is likely to be symbolic and small."
Yang said lower court precedents can be referenced. He cited a 2015 case in Daegu in which 300,000 won was recognized for a voter who could not vote due to an identity verification issue, and a 2023 case in which 1 million won was recognized related to assistance for voting by people with developmental disabilities.
However, Yang said, "This matter is different from a simple identity verification issue in that it arose because the commission failed to do what it was fundamentally supposed to do," adding, "How the court evaluates the seriousness of the infringement of the right to vote will be at issue."