Saturday, December 29, 2012

How Will a Supreme Court Decision Affect the Timing of the Next House of Representatives Election?

The following is tentative. For starters, I haven’t explained at length why I trust that the Supreme Court will not declare the December 16 House of Representatives election null and void, and the text looks a little cluttered. But I’m going to put it out there now, as I have other matters to tend to and it looks useful if only for anyone interested in the issue to think it through and come up with something better.
I’ve been reminded that a Supreme Court ruling on the current House of Representatives is likely to be coming down in another year and a half. Upon further consideration, I feel compelled to alter my prediction for Abe’s tenure to over two, not three, and a half years. Here’s my reasoning.

The Diet was put on notice on March 23, 2011 by a Supreme Court decision that ruled that the allocation of electoral seats for the August 30, 2009 House of Representatives (HoR) election had “reached a situation in which it contravened the demands of the Constitution for the equality of the value of votes at the point of the election” and stated the need to “take legislative measures…within a reasonable amount of time necessary for correction…that meet the requirement of equality of the value of votes.” Let’s assume that the lawsuit against the December 16 election takes a similar course through the courts with the Supreme Court decision coming in late June-early July 2014, around the end of that year’s regular session, give or take a couple of months. This will put significant public pressure on the Diet to preempt or soften the SC ruling by coming up with a formula that eliminates the one seat-per prefecture set-aside or otherwise eliminates the likelihood of generating a ratio larger than 2:1 for the value of individual votes. The fact that the Diet has so far failed to do so after the 2011 ruling in the second half of the 2011 regular session and through the entire 2012 session, not to mention the extraordinary sessions that have been summoned from time to time and instead came up with a last-minute minus-five emergency patch that would only go into effect in 2013 suggests that it is likely to dawdle again until the Supreme Court comes down with yet another, possibly more harshly worded ruling.

Assume, though, that the Diet does come up with a formula that musters a majority in both houses—this is the last kind of legislation for which you want to resort to a HoR supermajority override—during the 2014 regular session as originally scheduled. Another sixth months, minimum, will be required for the actual redistricting process under the new formula, then at least another few months for the public communications process, and only then could a HoR election be called. This should take us into the early months of 2015; at two years and some months after the Dec. 16 election, not nearly the three and a half that I’ve predicted, but certainly much longer than the one-year-and-out that many people are holding out for. In the unlikely event that the legislation dictates the districts so that no further redistricting is necessary, there will be a need for a public communications and preparations process, one that will require six months or more—if only because the majority incumbents, who will want to put off the day of reckoning, will demand it. That will still take us to the end of 2014 or thereabouts.

In the earlier, dawdling scenario, the Diet really gets serious—by that I mean really get serious about doing something fundamental about the situation—only after the SC ruling, which means another several months, maybe more, added to the timelines in the previous paragraph until the stage is set for any new HoR elections.

So that gives me several points on the timeline, two years, two and a half years, maybe three years from the election, where I could situate plausible over-unders. Right now, I’m more comfortable with the two-and-a-half and three-year ones, in that order, than the three-and-a-half one for which chose the over.


Anonymous said...

I agree that it is unlikely that the Supreme Court will rule the elections invalid, although wouldn't hold it out altogether.
What I do think will happen is that at least one lower court will hand down a verdict saying that the election was partially invalid. While it probably will be reversed at the SCOJ, and therefore not become a legal precedent, this will probably be shocking enough to lead to pressure to put through electoral reform. Of course, seeing how much the Diet reacted to the March 2011 ruling by the SCOJ, it may not mean much either.

Jun Okumura said...


Actually, I think that the likelihood of such a lower court ruling is low because the Tokyo High Court, which has sole jurisdiction over these cases, will think more thoroughly through the legal and practical implications of such a ruling.

Anonymous said...

Ah, but that's the whole point. The Tokyo High Court doesn't have sole jurisdiction over these cases, and the lawyers behind the cases made it a point to sue in every single High Court and all of the branches as well, giving some Justices who aren't so conservative a chance at writing an earthshaking ruling.

Jun Okumura said...

My bad. You’re absolutely right, Anonymous, all high courts have local jurisdiction. I misread Article 217.

In any case, see no way out of the legal predicament that would ensue after each of the results of a general election is ruled null and void individually (which is the outcome in the case the plaintiffs prevail in the Supreme Court). But a strongly worded SC ruling demanding an early election under a new system would be quite compelling as a driving force for as snap election, definitely more desirably under one installed as envisioned in the three-party agreement (and not the current minus-five patch). Would there be enough public pressure on the Abe cabinet to force it to call a snap election in the meantime? If the high courts are united in demanding one and a new system is in place, yes, I would guess. Otherwise, I expect the incumbents to wait for the SC to rule.