Ballot shortage sparks election nullification suits — but legal fire still burns against the state

An unprecedented ballot shortage during the June 3 local elections has triggered a fierce backlash, with the People Power Party and other opposition forces at one point raising the possibility of filing election nullification suits. Voter outrage in the affected areas has been strong enough that legal action could still become a reality. Legal experts have also said the National Election Commission's lack of preparation amounted to a violation of voters' rights.

According to the National Election Commission on Thursday, ballot shortages occurred at a total of 14 polling stations across Seoul's Songpa-gu, Gangnam-gu and Gwangjin-gu. In response, the commission issued a public apology on Wednesday under the name of Secretary General Heo Cheol-hun. The People Power Party, however, demanded a halt to vote counting, and party leaders including standing election strategy committee chairman Jang Dong-hyeok made protest visits to the central and Seoul election commissions on Wednesday night and early Thursday morning. Jang said the party was "preparing an election nullification suit."

Article 244 of the Public Official Election Act governs election nullification rulings. The provision states that an election commission, the Supreme Court or a high court may declare an election — or a candidate's election — wholly or partially void only when a violation of election regulations is found to have actually affected the outcome.

Cha Jin-ah, a professor at Korea University School of Law, said in a phone interview that "the Public Official Election Act limits nullification to cases where the result was affected," adding that "re-elections carry significant social costs and lasting consequences." She said the central question in any nullification suit arising from this incident would be whether the ballot shortage actually changed the outcome.

Jo Yong-hyeon, an attorney at law firm Class and a former senior judge at a high court, said "one of the key standards in a nullification ruling is the possibility of reversal," adding that "if the result could have changed by a narrow margin, there may be room for a case." Yang Hong-seok, an attorney at law firm Igong, offered a similar view, saying "if the election result could have flipped by a slim margin, it could become a problem."

Ultimately, if a nullification suit is filed, the vote margin between candidates is expected to be a critical factor. A suit could gain traction if the number of voters unable to cast ballots due to the shortage exceeded the gap between the top two finishers.

Analysts say the prospect of an opposition-led suit has effectively disappeared now that People Power Party candidate Oh Se-hoon won the Seoul mayoral race. It was the People Power Party itself that first raised the possibility of a nullification suit after the ballot shortage controversy erupted. After the results became clear, Democratic Party of Korea candidate Jeong Won-oh conceded defeat, saying he would "humbly and solemnly accept the choice of the citizens."

Opposition forces had also called for a revote alongside the nullification suit, but that possibility has similarly faded.

Under Article 197, Paragraph 1 of the Public Official Election Act, a revote may be held when voting could not be conducted due to a natural disaster, an act of God or other unavoidable circumstances. The law also stipulates that a revote need not be held if it is determined that it would have no bearing on the election outcome.

The National Election Commission drew a clear line in a statement Thursday, saying the ballot shortage at some polling stations "does not constitute grounds for postponing or re-holding an election under the Public Official Election Act."

Legal experts and scholars say lawsuits against the state over the ballot shortage — and the prospect of courts accepting them — remain a live possibility.

A former senior judge turned attorney said voters denied the right to vote due to the shortage "would naturally be entitled to seek compensation," explaining that "this is a violation of the right to vote, independent of whether the election itself is nullified." The attorney added, "This must never happen again," calling the infringement of voters' right to cast ballots "the worst possible situation."

Professor Cha also said "a lawsuit against the state appears to have merit," and that "fairly severe legal accountability must be imposed to prevent a recurrence." She said she was "deeply shocked that something like this could happen in 21st-century South Korea," warning that "sloppy election administration severely undermines the fairness of elections."

Attorney Jo likewise said "individuals could seek modest damages from the state," adding that "courts must judge this strictly so that it never happens again."