• By
  • Toko Sekiguchi

While all eyes are on which party will emerge as Japan’s top dog after Sunday’s general election, legal experts are keenly watching a different matter: they warn that some high-ranking lawmakers may be staking their political careers on a contest that the Supreme Court could throw out when its constitutionality is tested.

“There’s a high chance that the Supreme Court nullifies the outcome in some districts, given that the lawmakers went forward with an election that the court had already warned was unconstitutional,” said law professor Katsutoshi Takami at Sophia University.

Days after the March 11 tsunami and nuclear disaster last year, Japan’s highest court declared that the difference in the number of votes it took to elect lower house representatives between the most populous and the least districts in 2009 violated the constitutionally mandated equality under law, deeming the current electoral system “in a state of unconstitutionality.”

Agence France-Presse/Getty Images
Japanese Prime Minister Yoshihiko Noda, second right, of the ruling Democratic Party of Japan delivers a campaign speech for the Dec. 16 election in Fukushima prefecture on Dec. 4.

To put it another way: of Japan’s 300 single-representation lower house electoral districts, one vote in the sparsely populated district of Kochi prefecture on the island of Shikoku accounted for 2.43 of votes in an area with the most registered voters in Chiba prefecture, where Prime Minister Yoshihiko Noda’s constituents reside, according to the most recent government data released last week.

While the Supreme Court has ruled that this system where the value of one person’s vote is so skewed is unconstitutional on several occasions in the past, it was the first time that the court ruled on its constitutional violation since it took the current form in 1994.

Rather than nullifying the 2009 vote, the court ordered a revision of electoral zoning laws before the next general election which at the time of the 2011 ruling, was not due for two and a half years.

In the year that followed, the ruling Democratic Party of Japan and its largest opposition Liberal Democratic Party remained mired in partisan bickering, as the divided parliament gave way to legislative gridlock as the opposition-controlled upper house threatened to veto bills sent from the DPJ-held lower house.

Most lawmakers agreed on the need to rectify the unequal distribution of votes; but the DPJ insisted on a wider electoral reform to accompany the zone adjustment.

Mr. Noda ultimately succeeded in his strong-arm tactic to redress the vote gap by springing upon Mr. Abe a promise to dissolve parliament in exchange for the LDP cooperation to pass the bill in a public debate last month.

But the Nov. 16 enactment of the vote discrepancy adjustment comes too late to be implemented for the Dec. 16 general election, leaving the decision up to the courts.

Most experts agree that the parliament’s delayed response to last year’s ruling and refusal to reform what the court deemed fundamentally flawed would likely trigger a similar ruling if the upcoming contest is brought before law.

“But the Japanese Supreme Court has never stepped up its unconstitutional violation ruling to an actual invalidation of an electoral outcome,” said constitutional law professor Kazuaki Kinoshita of Hokkai-Gakuen University. “That hurdle may be a bit high for the Japanese courts.”

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