Since the ballot shortage in the June 3 local elections, calls to abolish or drastically reform the National Election Commission have been mounting in political circles. The legal community, however, sees abolition of the commission and institutional improvements as entirely different legal questions. 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 part-time to full-time.
Political parties are calling for reforms tantamount to dismantling the commission, a parliamentary inquiry, a special counsel, an overhaul of early voting, and making the commission chair a full-time post. The legal procedures needed to realize each of these demands, however, differ. While abolishing the commission is a matter of constitutional amendment, the commission's operating methods and supplements to election management procedures can be handled by revising statutes.
◇ Abolishing the commission is a constitutional matter… Not possible 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 specified directly in the Constitution. It consists of nine Commissioners: three appointed by the president, three elected by the National Assembly, and three designated by the chief justice, with a six-year term. Constitutional provisions also include bans on Commissioners' political involvement, limits on removal absent impeachment or a sentence of imprisonment or heavier, and the authority to enact rules.
Because the National Election Commission is designed as an independent, collegial constitutional body rather than an ordinary administrative agency within the executive branch, the legal community explains that the commission itself cannot be abolished by statute. A law cannot eliminate an institution the Constitution provides for.
A constitutional amendment bill must be proposed by the president or a majority of sitting lawmakers and passed by at least two-thirds of the sitting members of the National Assembly, then finalized by a national referendum. This means the commission cannot be eliminated outright under the current constitutional order merely because of the ballot shortage.
◇ Ballot management and on-site response can be addressed by amending laws
By contrast, there are many steps that are possible without amending the Constitution. The Constitution leaves the organization and scope of duties of each level of election commission, and other necessary matters, to statute. 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 a reserve of ballots at each polling place in excess of a certain percentage of registered voters, and mandate double checks by the district/city/county election commission and the polling manager on the day before the election to verify ballot quantities and arrival. If a ballot shortage or a voting suspension occurs, immediate reporting to the higher-level commission and disclosure of the suspension time and remedial actions could also be required.
By revising the Election Commission Act, the National Election Commission chair's work status and accountability could be strengthened, and the secretary general's operational responsibility and duty to report to the National Assembly in the event of an incident could be clarified through legislation. However, if making the National Election Commission chair a full-time position extends to altering the commission's composition or its status as a constitutional independent body, statutory amendments alone would face limits.
Lee In-ho, a constitutional law professor at Chung-Ang University School of Law, said the National Election Commission's part-time and concurrent service structure should also be reexamined. Lee said, "There has long been a practice at the National Election Commission of sitting incumbents such as Supreme Court justices and high court chiefs concurrently," adding, "If judges do not do substantive work, the operation inevitably centers on the secretary general." He added, "We need to block the customary placement of incumbent judges in the seats designated by the chief justice, and newly review judicial participation in local election commissions."
Lee, however, urged caution on making all Commissioners full-time. "Making all nine full-time could impose budgetary and other burdens," Lee said. "It is meaningful to reduce the number and make some full-time, 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 controls over 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 was conducted without constitutional or statutory authority and infringed on the commission's authority to perform its duties independently. Lee, however, said of this decision, "Even independent bodies must be subject to checks," adding, "The commission can also be subject to BAI inspections." Although this view differs from the court's ruling, it highlights a debate within the legal community over the commission's accountability.
The National Assembly is cited as a realistic actor to strengthen the commission's accountability, but it, too, has 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 can order cessation, warnings, or corrective measures for election law violations and, if necessary, can request investigations or file complaints.
Lee said, "Ultimately, the National Assembly should conduct a parliamentary inquiry and, if necessary, monitor the commission," adding, "While it is understandable that lawmakers, being elected officials, find it difficult to exercise proper control over the commission, that cannot be grounds for shirking responsibility." He continued, "If anything, the structure that makes lawmakers mindful of the commission's judgments also stems from the election law being excessively strict," adding, "We need a comprehensive overhaul not only of the commission's organization but also of the election law."
◇ Constitutional complaints assess constitutionality… Institutional reform is a legislative task
Constitutional complaints have also been filed over the ballot shortage. A constitutional complaint is a process to determine whether the commission's ballot preparation and on-site response fell short of the constitutional duty to guarantee the right to vote. Even if upheld, it does not automatically trigger a rerun of the election or the commission's abolition or reorganization.
If the Constitutional Court finds that the commission's ballot preparation and on-site response fell short of the constitutional duty to guarantee the right to vote, that could set a baseline for future improvements to the election management system. This would put topics such as calculating print volumes, managing reserve ballots, supplying shortages, guiding waiting voters, and preserving on-site records on the legislative agenda.
In the end, the solutions to this crisis diverge by stage. Abolishing the commission or altering its constitutional status is impossible without a constitutional amendment. By contrast, calculating ballot demand, managing reserves, supplying shortages, on-site guidance, record preservation, and strengthening accountability provisions fall within the scope of statutory amendments. The legal community warns that if the debate over the commission's accountability is framed only as a push for abolition, it could obscure discussion of the practical measures needed to prevent a recurrence.