Since the ballot shortage in the June 3 local elections, calls to abolish or drastically reform the National Election Commission have mounted in political circles. The legal community, however, sees abolishing the commission and improving the system as legally different issues. Abolishing the commission itself or changing its constitutional status would require a constitutional amendment, but supplementing election management procedures to prevent a recurrence of ballot shortages is possible through statutory amendments.
On the 8th, according to political circles, independent lawmaker Han Dong-hoon signaled on social media (SNS) that he would introduce a so-called "NEC reform bill" to convert the National Election Commission chair from a part-time post to a full-time one.
In political circles, demands continue for reforms tantamount to dismantling the commission, a parliamentary probe, a special counsel investigation, an overhaul of early voting, and making the commission chair a full-time position. The legal procedures required to realize these demands, however, differ. While abolishing the commission is a constitutional amendment matter, the way the commission operates and supplements to election management procedures can be addressed through statutory amendments.
◇ Abolishing the commission is a constitutional amendment issue… impossible by statute
The current Constitution provides for election commissions to ensure the fair management of elections and national referendums and to handle affairs related to political parties. The composition of the National Election Commission is also stipulated directly in the Constitution. It is composed of nine Commissioners: three appointed by the president, three elected by the National Assembly, and three designated by the chief justice, with terms of six years. Constitutional provisions also include prohibiting Commissioners from political involvement, limiting removal to cases of impeachment or a sentence of imprisonment without labor or heavier, and the power to enact rules.
Because the National Election Commission is designed as an independent collegial constitutional body rather than an ordinary administrative agency under the executive branch, the legal community says the commission itself cannot be abolished by statute. A body whose establishment is provided for by the Constitution cannot be eliminated by law.
A constitutional amendment bill must be proposed by the president or a majority of all National Assembly members, passed by two-thirds or more of all members of the National Assembly, and finalized through a national referendum. This means the commission cannot be immediately abolished due to the ballot shortage under the current constitutional framework.
◇ Ballot management and on-site response are possible through legal amendments
By contrast, many measures are possible without amending the Constitution. The Constitution provides that the organization and scope of duties of each-level election commission and other necessary matters be prescribed by law. Accordingly, by revising the Election Commission Act and the Public Official Election Act, much of the commission's operating methods and election management procedures can be adjusted.
For example, the Public Official Election Act could require securing spare ballots at each polling place in a specified ratio to the number of voters, and mandate that the district, city, or county commission and the polling manager double-check the quantity and arrival of ballots the day before the election. If ballot shortages or suspensions of voting occur, immediate reporting to the higher-level commission and disclosure of the suspension time and measures taken could also be required.
By revising the Election Commission Act, lawmakers could strengthen the work status and accountability of the National Election Commission chair, and clarify the secretary general's practical responsibility and the duty to report to the National Assembly in the event of an incident. However, if converting the chair to a full-time position effectively changes the commission's composition or its constitutional independence, statutory amendments alone would face limits.
Lee In-ho, a professor at Chung-Ang University Law School who specializes in constitutional law, said the National Election Commission's part-time and concurrent service structure also needs reexamination. Lee said, "There has long been a practice at the National Election Commission of incumbent judges, including Supreme Court justices and high court chiefs, serving concurrently," adding, "If judges do not do substantive work, operations inevitably become centered on the secretary general." Lee added, "We should block the structure in which the chief justice's quota is routinely filled by incumbent judges, and we should also take a fresh look at judges' participation in local commissions."
Lee, however, urged caution on making all Commissioners full time. "Making all nine positions full time could entail budgetary and other burdens," Lee said. "Reducing the number and making some positions full time is meaningful, but changing the composition of the National Election Commission itself would require a constitutional amendment."
◇ Limits to external oversight… a structural dilemma for parliamentary checks
Plans to strengthen external oversight of the commission face constitutional constraints. Even if the commission faces criticism, the government or the Board of Audit and Inspection cannot direct and supervise it comprehensively like an ordinary administrative agency.
In February, the Constitutional Court found that the Board of Audit and Inspection's job inspection of the commission's hiring and other personnel management practices was conducted without constitutional or legal authority and infringed on the commission's authority to perform its duties independently. Lee, however, said of this decision, "Independent bodies must still be subject to checks," adding, "The commission can be subject to BAI inspections." While differing from the court's decision, this highlights debate within the legal community over the commission's accountability.
The National Assembly is cited as a realistic actor to enhance the commission's accountability, but it too faces structural limits. Because lawmakers are elected through elections, they cannot fully escape the influence of the commission, which holds authority over election management and determinations of election law violations. Under the Election Commission Act, commissions at each level may issue orders to cease, warn, or correct violations of the election law and, if necessary, request investigations or file complaints.
Lee said, "Ultimately, the National Assembly should conduct a parliamentary investigation and, if necessary, oversee the commission," adding, "While it is understandable that lawmakers, being elected officials, find it difficult to properly control the commission, that cannot be grounds for shirking responsibility." Lee continued, "The very structure in which lawmakers are conscious of the commission's judgments also stems from an election law that is too strict," adding, "We need an across-the-board overhaul not only of the commission's organization but also of the election law."
◇ Constitutional complaints judge constitutionality… institutional reform is a legislative task
A constitutional complaint has also been filed over the ballot shortage. The complaint seeks a determination on whether the commission's ballot preparation and on-site response fell short of its constitutional duty to guarantee the right to vote. Even if upheld, it would not immediately trigger a rerun of the election or automatically abolish or restructure the commission.
If the Constitutional Court finds that the commission's ballot preparation and on-site response fell short of its constitutional duty to guarantee the right to vote, it could set a baseline for future reforms to election management. Matters such as calculating print quantities for ballots, managing spare ballots, supplying shortages, guiding waiting voters, and preserving on-site records could become subjects for legislation.
In the end, solutions to this situation diverge by stage. Abolishing the commission or changing its constitutional status is impossible without a constitutional amendment. By contrast, estimating ballot demand, managing reserves, supplying shortages, on-site guidance, record preservation, and strengthening accountability provisions are areas that can be addressed by statutory amendments. The legal community warns that if the debate over the commission's accountability is framed only as a push for abolition, discussions on necessary measures to prevent a recurrence could be obscured.