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On the different number of voters in single-member constituencies

Case No. 10/2015

 

 

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 

RULING

ON THE COMPLIANCE OF PARAGRAPH 1 (WORDING OF 6 NOVEMBER 2012) OF ARTICLE 9 OF THE REPUBLIC OF LITHUANIA’S LAW ON ELECTIONS TO THE SEIMAS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

20 October 2015, No. KT27-N16/2015

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Vytautas Greičius, Danutė Jočienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, Algirdas Taminskas, and Dainius Žalimas

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, at the Court’s public hearing on 13 October 2015, considered constitutional justice case No. 10/2015 subsequent to the petition (No. 1B-12/2015) of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether Paragraph 1 (wording of 6 November 2012) of Article 9 of the Republic of Lithuania’s Law on Elections to the Seimas, insofar as it permits a higher than 10-percent deviation in the number of voters in a single-member constituency from the average number of voters in all single-member constituencies, is in conflict with Article 4 and Paragraph 1 of Article 55 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The petition of the group of members of the Seimas, the petitioner, is substantiated by the following arguments.

1. The legal regulation laid down in Paragraph 1 of Article 9 of the Law on Elections to the Seimas, under which the number of voters in a single-member constituency must be 0.8–1.2 of the average number of voters in all single-member constituencies, may lead to a difference in the number of voters of up to 50 percent among separate single-member constituencies. Due to such a large difference, in the circumstances of comparable voter turnout, a vote cast in a constituency considered small according to the number of voters has more weight than a vote cast in large constituencies, i.e. votes cast by voters become unequal. In some single-member constituencies in cities, the number of voters is much larger, whereas, in rural areas, this number is considerably smaller, than the average number of voters in single-member constituencies. In view of the fact that voters in large cities are more supportive of certain political parties, whereas voters in rural areas favour other political parties (politicians), it can be assumed that differences in the number of voters in single-member constituencies are artificially maintained for political purposes; for this reason, the electoral process is not fair and not transparent.

Thus, the impugned legal regulation creates a legal situation where the members of the Seimas in single-member constituencies are elected by an unequal number of voters; candidates compete in separate constituencies under unequal conditions; the will of the majority of voters is not reflected. This leads to the violation of one of the principles of democratic elections, i.e. the principle of equal suffrage, which is consolidated in Paragraph 1 of Article 55 of the Constitution, and, at the same time, to the violation of Article 4 of the Constitution, under which the Nation executes its supreme sovereign power through its democratically elected representatives.

2. The Constitutional Court has held that the electoral system must not be favourable exclusively to certain subjects exercising their passive electoral right; no such preconditions may be created that would preclude the possibility of reflecting the will of the majority of voters. The Constitutional Court has held on more than one occasion that the Constitution gives rise to the duty of the legislature to lay down such a legal regulation that ensures the fairness and transparency of the electoral process—the necessary preconditions for voters to trust the representative institution.

3. The impugned legal regulation is not consistent with the internationally accepted good electoral practice, under which the departure of the number of voters in constituencies should not be more than 10 percent from the average, except in special circumstances where a deviation of up to 15 percent is permitted. However, there are no such special circumstances in Lithuania.

4. The legal regulation in question would be consistent with the Constitution if it were established that the number of voters in a single-member constituency must be 0.9–1.1 of the average number of voters in all single-member constituencies, i.e. if a deviation of not more than 10 percent were permitted. Such a legal regulation was laid down in the Law on Elections to the Seimas until 2002.

II

In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from Valentinas Bukauskas, Chair of the Seimas Committee on State Administration and Local Authorities, acting as the representative of the Seimas, the party concerned. In the explanations, it is maintained that the impugned legal regulation is not in conflict with Article 4 and Paragraph 1 of Article 55 of the Constitution. The position of the representative of the party concerned is substantiated by the following arguments.

1. There is no ground for stating conclusively that the establishment of the limit of 20 percent on deviation in the number of voters in a single-member constituency from the average number of voters in all single-member constituencies can have a greater impact on the power of a vote than in the event of the consolidation of the 10-percent deviation limit and that, in this way, the principle of equal suffrage is violated. The constitutionality of the legal regulation establishing the permitted deviation in the number of voters should be assessed only after the statistical data on elections and the results of elections have been analysed, and the impact of the difference in the number of voters among separate single-member constituencies on the results of elections has been assessed by using mathematical and statistical methods. However, according to the representative of the party concerned, the petitioner, in its petition to the Constitutional Court, in principle, submitted theoretical arguments and calculations as regards the impact of the size of single-member constituencies on the results of elections to the Seimas, i.e. the petitioner did not substantiate that the established maximum permissible deviation in the number of voters in a single-member constituency is favourable exclusively to certain subjects exercising their passive electoral right.

2. The recommendatory Code of Good Practice in Electoral Matters, adopted by the European Commission for Democracy through Law (Venice Commission), provides that, with regard to the number of voters, the permissible departure is no more than 10 percent (in exceptional circumstances—15 percent), which is applicable exclusively to the majoritarian electoral system. However, in the Republic of Lithuania, there is a mixed system of elections to the Seimas, under which, when 70 members of the Seimas (i.e. almost half of all the members of the Seimas) are elected in the multi-member constituency, there is no deviation in the number of voters, i.e. the vote of each voter has equal power. Therefore, as regards the overall impact of the vote cast by a voter (voting power) in the election of 141 members of the Seimas, the deviation limit of 20 percent, as consolidated in the impugned provision of the law, can be treated as comparable to that not exceeding the 10-percent deviation limit.

3. In the majoritarian electoral system, as well as in other electoral systems, the absolute equality of votes is impossible. Certain other elements of the electoral system have a more considerable impact on the results of elections than a deviation of up to 20 percent in the number of voters. For instance, due to unequal turnout, during the second poll in Raseiniai single-member constituency in the election of the Seimas in 2012, the member of the Seimas was elected by a larger number of votes compared to the member of the Seimas elected in Naujoji Vilnia single-member constituency, although the number of voters, as well as the deviation from the average number of voters in all single-member constituencies, was larger in the latter of these constituencies.

III

In the course of the preparation of the case for the hearing of the Constitutional Court, written opinions were received from Zenonas Vaigauskas, Chairman of the Central Electoral Commission of the Republic of Lithuania, and Dr. Mažvydas Jastramskis, lecturer at the Department of Political Theory of the Institute of International Relations and Political Science of Vilnius University.

In the opinion submitted by Zenonas Vaigauskas, among other things, it is noted that, in Lithuania, there is a mixed system of elections to the Seimas, under which 71 members of the Seimas are elected in single-member constituencies and 70 members of the Seimas are elected in the multi-member constituency. The results of the election in single-member constituencies are not dependent on the results of the election in the multi-member constituency. The mixed system of elections to the Seimas is aimed at partially eliminating the shortcomings of the majoritarian electoral system that are related to the loss of votes cast for non-winning candidates. In this way, the negative impact of the majoritarian electoral system, under which slightly more than half of the members of the Seimas are elected in single-member constituencies, on the results of elections is reduced. Therefore, in view of the mixed system of elections to the Seimas, the established 20-percent deviation in the number of voters in a single-member constituency from the average number of voters in all single-member constituencies, in principle, corresponds to the 10-percent deviation, i.e. the deviation limit recommended according to international good practice in electoral matters. In this written opinion, it is noted that, under the Law on Elections to the Seimas, vested with the powers to determine the number of voters in single-member constituencies, the Central Electoral Commission may draw the boundaries of these constituencies in such a manner that the number of voters in them would not deviate more than 10 percent from the average number of voters in all single-member constituencies; the opinion also provides concrete suggestions as to how the national territory should be divided into single-member constituencies so that the number of voters in these constituencies would conform to the said deviation. Zenonas Vaigauskas points out that, based on the analysis of 1 July 2015 on the number of voters, before the 2016 election to the Seimas, the boundaries of at least 13 single-member constituencies will need to be redrawn, since the number of voters in them will be exceeding the 20-percent deviation limit provided for by the law; if the 10-percent deviation limit is applied, the boundaries of 42 single-member constituencies will need to be revised.

In the written opinion of Mažvydas Jastramskis, among other things, it is indicated that malapportionment may distort the results of elections and may be regarded as a divergence from the general practice of democratic elections.

IV

The hearing of the Constitutional Court was attended by the specialists Zenonas Vaigauskas, Chairman of the Central Electoral Commission, and Dr. Rolandas Tučas, lecturer at the Department of Geography and Land Management of the Faculty of Natural Sciences of Vilnius University, who spoke and answered the questions of the justices of the Constitutional Court.

Zenonas Vaigauskas explained that, due to demographic changes, in 2002, it was necessary to change the boundaries of single-member constituencies so that these constituencies would conform to the then permitted deviation of no more than 10 percent from the average number of voters in single-member constituencies; however, instead of this, a simpler means was chosen: to raise the deviation limit from 10 percent to 20 percent. This simpler means was chosen with a view to achieving certain stability, since, if a lower limit on deviation in the number of voters had been established, the boundaries of constituencies would have needed to be altered more often due to demographic changes. Zenonas Vaigauskas noted that, due to the established 20-percent deviation in the number of voters from the average, the number of voters among separate single-member constituencies may differ up to 1.5 times. The Central Electoral Commission has recently prepared two drafts concerning the alteration of the boundaries of single-member constituencies: according to one of them, a deviation of up to 20 percent will be permitted among single-member constituencies and, according to the other, a deviation will be permitted to be not larger than 10 percent from the average number of voters in all single-member constituencies. Considering that the implementation of the second draft will require changing the boundaries of all single-member constituencies, it is proposed that it should be implemented starting from the election to the Seimas in 2020.

Rolandas Tučas explained that the lower the deviation limit in the number of voters, the more technically difficult it is to draw the boundaries of single-member constituencies. In the opinion of this specialist, a 10-percent deviation from the average number of voters in all single-member constituencies would be optimal in the conditions of Lithuania. The achievement of this is technically possible provided that account is taken of other criteria significant for the formation of constituencies, including those set out in Paragraph 1 of Article 9 of the Law on Elections to the Seimas (e.g., administrative territorial division). According to Rolandas Tučas, it would be complicated to draw the boundaries of constituencies if an even lower deviation, e.g. that of up to 5 percent, were applied. As maintained by Rolandas Tučas, there are no such circumstances in Lithuania that, in terms of the connectivity of territory or in view of certain groups of persons residing therein, could be treated as special and, thus, necessitating the application of a higher than 10-percent deviation in the number of voters.

The Constitutional Court

holds that:

I

1. The group of members of the Seimas, the petitioner, impugns the constitutionality of Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas, insofar as it permits a higher than 10-percent deviation in the number of voters in a single-member constituency from the average number of voters in all single-member constituencies.

In the constitutional justice case at issue, consideration should be given to certain aspects of the development of the legal regulation consolidated in the Law on Elections to the Seimas regarding the formation of single-member constituencies.

2. On 9 July 1992, the Supreme Council of the Republic of Lithuania adopted the Republic of Lithuania’s Law on Elections to the Seimas. Article 1 of this law, inter alia, prescribed that the members of the Seimas were elected in single-member constituencies and the multi-member constituency according to the mixed system of elections. It should be noted that the mixed system of elections, according to which the members of the Seimas are elected in single-member constituencies and the multi-member constituency, has been established in the Law on Elections to the Seimas up till the present.

Paragraph 1 of Article 8 “The Formation of Constituencies” of the Law on Elections to the Seimas prescribed: “For the organisation and conduct of elections, the territory of the Republic of Lithuania shall be divided into 71 single-member constituencies, taking into consideration the number of inhabitants and the administrative division of the territory of the Republic of Lithuania. The number of inhabitants in constituencies must not differ by more than 25 percent. The Central Electoral Committee shall establish the size of constituencies and their boundaries and centres, and shall make this information public not later than 80 days before the election.”

Thus, under this legal regulation, the number of inhabitants in single-member constituencies, which had to be formed by taking account of the number of inhabitants and administrative-territorial division, could not differ by more than 25 percent, i.e. the number of inhabitants in one single-member constituency could not be higher or lower by more than 25 percent than the number of inhabitants in another single-member constituency.

3. The Law on Elections to the Seimas (wording of 9 July 1992) has been amended and supplemented on more than one occasion.

3.1. On 4 August 1992, the Supreme Council adopted the Republic of Lithuania’s Law on Amending and Supplementing Certain Articles of the Republic of Lithuania’s Law on Elections to the Seimas, which amended Paragraph 1 (wording of 9 July 1992) of Article 8 of the Law on Elections to the Seimas.

Paragraph 1 (wording of 4 August 1992) of Article 8 of the Law on Elections to the Seimas prescribed: “For the organisation and conduct of elections, the territory of the Republic of Lithuania shall be divided into 71 single-member constituencies, taking into consideration the number of inhabitants and the administrative division of the territory of the Republic of Lithuania. The number of inhabitants in constituencies must not differ by more than 25 percent. The Central Electoral Committee shall establish the size of constituencies and their boundaries and centres, and shall make this information public not later than 75 days before the election.”

The comparison of the legal regulation laid down in Paragraph 1 (wording of 4 August 1992) of Article 8 of the Law on Elections to the Seimas with the legal regulation laid down in Paragraph 1 (wording of 9 July 1992) of Article 8 of this law makes it clear that the provision that the number of inhabitants in constituencies must not differ by more than 25 percent remained unchanged.

3.2. On 27 June 1996, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on Elections to the Seimas, by Article 1 of which, the Law on Elections to the Seimas (wording of 9 July 1992 with subsequent amendments and supplements) was set out in a new wording.

Paragraph 1 of Article 9 “The Formation of Constituencies” of the Law on Elections to the Seimas (wording of 27 June 1996) prescribed: “For the organisation and conduct of elections, the territory of the Republic of Lithuania shall be divided into 71 single-member constituencies, taking into consideration the number of inhabitants and the administrative division of the territory of the Republic of Lithuania. A constituency shall be formed from polling districts that have common boundaries. The number of voters in a constituency must be from 0.9 to 1.1 of the average number of voters in all single-member constituencies. The Central Electoral Commission, no later than 95 days before the election, shall establish and, no later than 90 days before the election, shall announce in the Official Gazette Valstybės žinios the list of polling districts forming constituencies, the addresses and telephone numbers of their polling stations, the number of voters in constituencies, and the addresses and telephone numbers of constituency electoral committees.”

Thus, under this legal regulation, in a single-member constituency, formed from polling districts with common boundaries by taking account of the number of inhabitants and the administrative division of the territory, the number of voters had to be from 0.9 to 1.1 of the average number of voters in all single-member constituencies.

The comparison of the legal regulation laid down in Paragraph 1 of Article 9 of the Law on Elections to the Seimas (wording of 27 June 1996) with the legal regulation laid down in Paragraph 1 (wording of 4 August 1992) of Article 8 of this law makes it clear that the legal regulation concerning the formation of single-member constituencies changed, inter alia, in terms that, instead of the formerly permitted differences in the number of inhabitants expressed as a certain percentage in separate single-member constituencies, the law provided that differences in the number of voters in a single-member constituency must be within the interval from 0.9 to 1.1 of the average number of voters in all single-member constituencies. Expressed in percentage terms, the said interval of the permitted differences in the number of voters meant that the number of voters in a single-member constituency had to be from 90 percent to 110 percent of the average number of voters in all single-member constituencies, i.e. the permitted deviation in the number of voters in a single-member constituency did not exceed 10 percent of the average number of voters in all single-member constituencies.

3.3. On 18 July 2000, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on Elections to the Seimas, by Article 1 of which, the Law on Elections to the Seimas (wording of 27 June 1996 with subsequent amendments and/or supplements) was set out in a new wording.

Paragraph 1 (wording of 18 July 2000) of Article 9 “The Formation of Constituencies” of the Law on Elections to the Seimas prescribed: “For the organisation and conduct of elections, the territory of the Republic of Lithuania shall be divided into 71 single-member constituencies, taking into consideration the number of voters in the constituency, the division of the territory of the Republic of Lithuania into single-member constituencies during the previous elections to the Seimas, and the administrative-territorial division of the Republic of Lithuania. A constituency shall be formed from polling districts that have common boundaries. The number of voters in a constituency must be from 0.9 to 1.1 of the average number of voters in all single-member constituencies. The Central Electoral Commission, no later than 95 days before the election, shall establish and, no later than 90 days before the election, shall announce in the Official Gazette Valstybės žinios the list of polling districts forming constituencies, the addresses and telephone numbers of their polling stations, the number of voters in constituencies, and the addresses and telephone numbers of constituency electoral committees.”

Thus, under this legal regulation, in a single-member constituency, formed from polling districts with common boundaries by taking account of the number of voters in the constituency, the division of the territory of the Republic of Lithuania into single-member constituencies during the previous elections to the Seimas, and the administrative-territorial division, the number of voters had to be from 0.9 to 1.1 of the average number of voters in all single-member constituencies.

The comparison of the legal regulation laid down in Paragraph 1 (wording of 18 July 2000) of Article 9 of the Law on Elections to the Seimas with the legal regulation laid down in Paragraph 1 of Article 9 of the Law on Elections to the Seimas (wording of 27 June 1996) makes it clear that the provision that the number of voters in a constituency had to be from 0.9 to 1.1 of the average number of voters in all single-member constituencies remained unchanged, i.e. expressed in percentage terms, this interval of the permitted differences in the number of voters meant that the number of voters in a single-member constituency had to be from 90 percent to 110 percent of the average number of voters in all single-member constituencies. In other words, the law continued to provide that deviation in the number of voters in a single-member constituency must not exceed 10 percent of the average number of voters in all single-member constituencies.

3.4. On 20 June 2002, the Seimas adopted the Republic of Lithuania’s Law Amending Articles 2, 7, 9, 19, 20, 23, 25, 29, and 95 of the Law on Elections to the Seimas and Declaring Articles 12, 13, and 14 of This Law as No Longer Valid, by Article 3 of which, the Seimas amended Paragraph 1 (wording of 18 July 2000) of Article 9 of the Law on Elections to the Seimas.

Paragraph 1 (wording of 20 June 2002) of Article 9 “The Formation of Constituencies” of the Law on Elections to the Seimas prescribed: “For the organisation and conduct of elections, the territory of the Republic of Lithuania shall be divided into 71 single-member constituencies, taking into consideration the number of voters in the constituency, the division of the territory of the Republic of Lithuania into single-member constituencies during the previous elections to the Seimas, and the administrative-territorial division of the Republic of Lithuania. A constituency shall be formed from polling districts that have common boundaries. The number of voters in a constituency must be from 0.8 to 1.2 of the average number of voters in all single-member constituencies. The Central Electoral Commission, no later than 95 days before the election, shall establish and, no later than 90 days before the election, shall announce in the Official Gazette Valstybės žinios the list of polling districts forming constituencies, the addresses and telephone numbers of their polling stations, the number of voters in constituencies, and the addresses and telephone numbers of constituency electoral committees.”

Thus, under this legal regulation, in a single-member constituency, formed from polling districts with common boundaries by taking account of the number of voters in the constituency, the division of the territory of the Republic of Lithuania into single-member constituencies during the previous elections to the Seimas, and the administrative-territorial division of the Republic of Lithuania, the number of voters had to be from 0.8 to 1.2 of the average number of voters in all single-member constituencies.

The comparison of the legal regulation laid down in Paragraph 1 (wording of 20 June 2002) of Article 9 of the Law on Elections to the Seimas with the legal regulation laid down in Paragraph 1 (wording of 18 July 2000) of Article 9 of this law makes it clear that the legal regulation concerning the formation of single-member constituencies changed in terms that the interval of the permitted differences in the number of voters in single-member constituencies was raised: instead of the number of voters from 0.9 to 1.1 of the average number of voters in all single-member constituencies, the number of voters was established to be 0.8–1.2 of the average number of voters in all single-member constituencies. Expressed in percentage terms, the said 0.8–1.2 interval of the permitted differences in the number of voters meant that the number of voters in a single-member constituency had to be from 80 percent to 120 percent of the average number of voters in all single-member constituencies, i.e. the permitted deviation in the number of voters in a single-member constituency could not exceed 20 percent of the average number of voters in all single-member constituencies. Thus, following the aforementioned amendments of the legal regulation in question, compared to the formerly established deviation applicable before these amendments, the law provided for twice higher deviation in the number of voters in a single-member constituency from the average number of voters in all single-member constituencies.

It should be noted that, from the travaux préparatoires of the law under which the limit on deviation in the number of voters in single-member constituencies was raised from 10 percent to 20 percent, it is clear that the said limit was raised with a view to avoiding the division of municipal territories into several constituencies and taking more account of the administrative-territorial division.

3.5. On 6 November 2012, the Seimas adopted the Republic of Lithuania’s Law Amending Articles 51, 9, 10, 45, and 93 of the Law on Elections to the Seimas, by Article 2 of which, Paragraph 1 (wording of 20 June 2002) of Article 9 of the Law on Elections to the Seimas was amended.

Paragraph 1 (wording of 6 November 2012) of Article 9 “The Formation of Constituencies” of the Law on Elections to the Seimas, whose compliance with the Constitution, to the extent specified by the petitioner, is impugned in the constitutional justice case at issue, prescribes: “For the organisation and conduct of elections, the territory of the Republic of Lithuania shall be divided into 71 single-member constituencies, taking into consideration the number of voters in the constituency, the division of the territory of the Republic of Lithuania into single-member constituencies during the previous elections to the Seimas, and the administrative-territorial division of the Republic of Lithuania. A constituency shall be formed from polling districts that have common boundaries. The number of voters in a constituency must be from 0.8 to 1.2 of the average number of voters in all single-member constituencies. The Central Electoral Commission, no later than 95 days before the election, shall establish and, no later than 90 days before the election, shall announce on its website the list of polling districts forming constituencies, the addresses and telephone numbers of their polling stations, the number of voters in constituencies, and the addresses and telephone numbers of constituency electoral committees.”

The comparison of the legal regulation laid down in Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas with the legal regulation laid down in Paragraph 1 (wording of 20 June 2002) of Article 9 of this law makes it clear that the provision that the number of voters in a constituency must be from 0.8 to 1.2 of the average number of voters in all single-member constituencies has remained unchanged, i.e. expressed in percentage terms, this interval of the permitted differences in the number of voters means that the number of voters in a single-member constituency must be from 80 percent to 120 percent of the average number of voters in all single-member constituencies. In other words, the impugned legal regulation provides that deviation in the number of voters in a single-member constituency must not exceed 20 percent of the average number of voters in all single-member constituencies.

3.6. In revealing the content of the legal regulation laid down in Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas, which permits a deviation of up to 20 percent in the number of voters in a single-member constituency from the average number of voters in all single-member constituencies, in the context of the constitutional justice case at issue, mention should be made of those differences in the number of voters in separate single-member constituencies that may result due to the permitted deviation. For example, if, in one single-member constituency, the number of voters is 20 percent higher than the average number of voters in all single-member constituencies and, in another single-member constituency, the number of voters is 20 percent lower than the average number of voters in all single-member constituencies, then the comparison of such largest and smallest constituencies according to the number of voters makes it clear that there are 1.5 times more voters in the largest constituency than compared to the smallest constituency, i.e. in percentage terms, the number of voters in the constituency that is largest according to the number of voters is 50 percent higher than the number of voters in the constituency that is smallest according to the number of voters. If, in one single-member constituency, the number of voters is 10 percent higher than the average number of voters in all single-member constituencies and, in another single-member constituency, the number of voters is 10 percent lower than the average number of voters in all single-member constituencies, then the comparison of such constituencies makes it clear that there are 1.2 times more voters in the first-mentioned constituency than in the second-mentioned constituency.

Thus, in interpreting the legal regulation laid down in Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas, which permits a deviation of up to 20 percent in the number of voters in a single-member constituency from the average number of voters in all single-member constituencies, it should be noted that, due to such a permitted interval of deviation, the largest constituency is as much as 1.5 times larger than the smallest constituency according to the number of voters.

4. To summarise the development of the above-considered legal regulation, as consolidated in the Law on Elections to the Seimas, regarding the formation of single-member constituencies, from the aspect significant for this constitutional justice case, it should be noted that, since1992, the Law on Elections to the Seimas has established a limit on deviation in the number of voters (inhabitants) in single-member constituencies; this limit has been amended on more than one occasion, inter alia, by modifying the manner of its calculation:

from 9 July 1992 to 27 June 1996, the law permitted a difference of up to 25 percent in the number of inhabitants among single-member constituencies;

from 27 June 1996 to 20 June 2002, the law provided that the number of voters in a single-member constituency must be from 0.9 to 1.1 of the average number of voters in all single-member constituencies, i.e. expressed in percentage terms, the permitted deviation in the number of voters in a single-member constituency could not exceed 10 percent of the average number of voters in all single-member constituencies;

from 20 June 2002 up to the present, the law has provided that the number of voters in a single-member constituency must be from 0.8 to 1.2 of the average number of voters in all single-member constituencies, i.e. expressed in percentage terms, the permitted deviation in the number of voters in a single-member constituency may be up to 20 percent of the average number of voters in all single-member constituencies; due to such a permitted interval of deviation, the largest constituency is as much as 1.5 times larger than the smallest constituency according to the number of voters.

II

1. In the constitutional justice case at issue, the petitioner impugns the compliance of Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas, insofar as it permits a higher than 10-percent deviation in the number of voters in a single-member constituency from the average number of voters in all single-member constituencies, with Article 4 and Paragraph 1 of Article 55 of the Constitution.

2. The constitutional principles of the election of the Seimas—the representation of the Nation and the imperatives of the legal regulation of electoral relations are consolidated in various articles (paragraphs of articles) of the Constitution, inter alia, in Article 4, Paragraph 1 of Article 33, Paragraphs 1 and 2 of Article 34, and Article 55. It should be noted that, in various acts adopted in previous constitutional justice cases, the Constitutional Court formulated and developed the official constitutional doctrine on electoral matters, which contains aspects relevant to the constitutional justice case at issue.

3. Under Article 4 of the Constitution, the Nation executes its supreme sovereign power either directly or through its democratically elected representatives. The Constitutional Court has held that the Nation directly executes its supreme sovereign power through two main organisational forms: national elections and referendums. The principles and main conditions for organising national elections and referendums are consolidated in constitutional norms, and the procedures for conducting national elections and referendums are regulated by the relevant laws. The legal ground for the aforesaid forms of democracy derives from Articles 2 and 4 of the Constitution, as well as from the electoral rights of citizens (Articles 33 and 34 of the Constitution) (the Constitutional Court’s decision of 11 July 1994 and its ruling of 11 July 2014).

4. Paragraph 1 of Article 33 of the Constitution, inter alia, stipulates that citizens have the right to participate in the governance of their state both directly and through their democratically elected representatives. One of the fundamental characteristics of a democratic state is democratic elections of representative institutions of state power (inter alia, the Constitutional Court’s rulings of 1 October 2008 and 29 March 2012). It is through elections that every citizen implements his/her right to participate, together with other citizens, in the governance of his/her country and in the formation of the Seimas—the representation of the Nation (the Constitutional Court’s ruling of 1 October 2008). To secure the right of citizens to participate in the governance of their state, as consolidated in Paragraph 1 of Article 33 of the Constitution, inter alia, through democratically elected representatives, the legislature must create the preconditions for reflecting the will of voters, inter alia, the preconditions for ensuring the transparency of the electoral process and fair competition among subjects exercising their passive electoral right (the Constitutional Court’s rulings of 17 November 2011 and 29 March 2012).

5. Paragraph 1 of Article 33 of the Constitution is interrelated, inter alia, with Article 34 of the Constitution, where the constitutional grounds for active and passive electoral rights are established (the Constitutional Court’s ruling of 29 March 2012).

Paragraph 1 of Article 34 of the Constitution, under which citizens who, on the day of the election, have reached 18 years of age, have the electoral right, consolidates the so-called active electoral right, i.e. the possibility for persons to participate in the elections of certain public authority institutions by freely choosing for which nominated candidate or candidates to vote (the Constitutional Court’s rulings of 1 October 2008 and 29 March 2012). The provision of Paragraph 2 of Article 34 of the Constitution that the right to stand for election is established by the Constitution of the Republic of Lithuania and by the election laws consolidates the so-called passive electoral right, i.e. the opportunity for a person to stand as a candidate in the election of members of a particular elective public authority institution under the procedure established by the Constitution and election laws, i.e. the opportunity to seek to be elected (the Constitutional Court’s rulings of 1 October 2008, 9 November 2010, 29 March 2012, and 13 October 2014). In this context, it should be noted that, as held by the Constitutional Court, under the Constitution, when the regulation of electoral relations is established by means of a law, the law must ensure an equal active electoral right of all voters (the right to vote, i.e. the right to elect), as well as an equal passive electoral right of all candidates (the right to be registered in an election as a candidate, i.e. the right to stand for election) (the Constitutional Court’s rulings of 11 May 2011, 29 March 2012, and 13 October 2014). While interpreting Paragraph 2 of Article 34 of the Constitution, the Constitutional Court has held that this paragraph gives rise to the duty of the legislature to establish such a legal regulation that ensures adherence to the principles of democratic elections, inter alia, the transparency of the electoral process, equality and fair competition among collective entities nominating candidates for elections, as well as the publicity of information that is important to voters about such entities (the Constitutional Court’s ruling of 13 October 2014).

6. Consolidating the constitutional grounds for active and passive electoral rights, the provisions of Article 34 of the Constitution are inextricably linked to Article 55, which lays down the legal imperatives of elections of the members of the Seimas (the Constitutional Court’s ruling of 1 October 2008).

Paragraph 1 of Article 55 of the Constitution provides that the Seimas consists of representatives of the Nation—141 members of the Seimas, who are elected for a four-year term on the basis of universal, equal, and direct suffrage by secret ballot; Paragraph 2 of Article 55 specifies that the Seimas is deemed elected when not less than 3/5 of the members of the Seimas are elected; and Paragraph 3 of the same article stipulates that the procedure for the election of the members of the Seimas is established by law.

6.1. Thus, under Paragraph 1 of Article 55 of the Constitution, the members of the Seimas are elected, inter alia, on the basis of equal suffrage. While interpreting this provision of the Constitution, the Constitutional Court has revealed the following content of equal suffrage: with regard to the principle of equal suffrage, it is universally recognised that this principle, inter alia, means that, in the course of organising and conducting elections, all voters must be treated equally, as well as that the vote of each voter is equal to the vote of any other voter and has equal weight when the results of voting are established (the Constitutional Court’s ruling of 1 October 2008). It should be noted that the principle of equal suffrage is one of the constitutionally consolidated universally recognised principles of democratic elections to political representative institutions (the Constitutional Court’s ruling of 9 November 2010, its conclusion of 10 November 2012, and its ruling of 13 October 2014).

6.2. The Constitutional Court has held that the provision of Paragraph 3 of Article 55 of the Constitution, under which the procedure for the election of the members of the Seimas must be established by law, means that the legislature has the duty, by means of a law, to consolidate the system of the election of the members of the Seimas and establish the grounds and procedure for organising elections; while performing this duty, the legislature is obliged to observe the Constitution; the legislature may not, on its own, deny, distort, or limit the universal, equal, and direct suffrage or secret ballot, nor may it create any legal preconditions for other subjects to do so; otherwise, the expression of the sovereign power of the Nation through the Seimas—the representation of the Nation would be limited or completely denied (the Constitutional Court’s conclusions of 5 November 2004, 7 November 2008, 26 October 2012, and 10 November 2012). The legislature, when consolidating an appropriate system of the election of the members of the Seimas, must respect the constitutional concept of the Seimas as the representation of the Nation (the Constitutional Court’s ruling of 1 October 2008).

Whichever system of the election of the members of the Seimas (exclusively proportional, or exclusively majoritarian, or a mixed system of elections in which the proportional and majoritarian systems of elections are combined) is chosen by the legislature, the legal regulation established by means of a law must ensure that these elections are conducted in compliance with the principles of democratic, free, and fair elections, as consolidated in the Constitution. Once the legislature chooses the so-called mixed system of parliamentary elections, which combines the proportional and majoritarian systems of elections, elections in the multi-member constituency and single-member constituencies must be conducted in accordance with the same standards of democratic, free, and fair elections, and the same requirements must be applied to both candidates on the lists of political parties and individual persons standing as candidates in single-member constituencies (the Constitutional Court’s conclusion of 10 November 2012). It should be noted that neither the proportional system, nor the majoritarian system, nor the mixed system of elections in which the proportional and majoritarian systems of elections are combined, can be regarded, in itself, as creating the preconditions for violating the requirements of free and democratic elections, universal and equal suffrage, secret ballot, or other standards of elections in a democratic state under the rule of law (the Constitutional Court’s rulings of 9 February 2007, 1 October 2008, and 9 November 2010). The Constitutional Court has also held that none of the electoral systems may ensure that the established election results will reflect the vote of each voter participating in the election and that each candidate for whom at least a certain number of voters have cast their votes will participate in the distribution of mandates; nevertheless, it is important that the electoral system would not be favourable exclusively to certain subjects exercising their passive electoral right and that it would not create the preconditions for not reflecting the will of the majority of voters (the Constitutional Court’s rulings of 11 May 2011 and 29 March 2012).

6.3. In the context of the constitutional justice case at issue it should be noted that, having decided on such an electoral system where the members of the Seimas (or part thereof) are elected in single-member constituencies, the legislature is under the duty, which stems from the Constitution, inter alia, Paragraph 1 of Article 55 thereof, to establish a legal regulation ensuring that the number of voters in these constituencies does not differ to such an extent that creates the preconditions for distorting the equal weight of votes when the results of voting are established. The greater the difference in the number of voters among separate constituencies, the greater the distortion of the equal weight of votes can be when the results of voting are established. However, this does not mean that, under the Constitution, any differences in the number of voters among separate constituencies are not possible at all.

6.3.1. In this context, it should be noted that the number of voters in constituencies is subject to change (increase or decrease) due to various objective reasons (inter alia, migration of voters or other demographic factors). In view of this fact, it should be pointed out that, when constituencies are formed, it is not possible with complete accuracy to determine what the number of voters will be on the election day in each constituency. As held by the Constitutional Court on more than one occasion, legal acts may not require what is impossible (lex non cogit ad impossibilia). The Constitutional Court has also held that the Constitution does not require what is irrational (the Constitutional Court’s ruling of 27 June 2007). Thus, the Constitution does not require that such a legal regulation be established under which exactly the same number of voters in all constituencies would be ensured.

6.3.2. In its ruling of 13 October 2014, the Constitutional Court noted that fair competition among subjects exercising their passive electoral right and the transparency of the electoral process are the universally recognised principles of democratic elections. In the context of the constitutional justice case at issue, it should be noted that ensuring the aforementioned principles of democratic elections implies certain requirements for the formation of constituencies: constituencies must be formed transparently; they must satisfy the principle of connectivity and must be compact; their boundaries must be clear and understandable. Under the Constitution, while seeking to maintain a balance among various constitutional values, inter alia, to ensure the implementation of the requirements stemming with regard to the formation of constituencies from the universally recognised principles of democratic elections, such as equal suffrage, fair competition among subjects exercising their passive electoral right, and the transparency of the electoral process, it is permissible to establish such a legal regulation that allows certain differences in the number of voters among constituencies. However, there is no constitutional justification for a legal regulation that would allow such differences in the number of voters that would create the preconditions for distorting the equal weight of votes when the results of voting are established or the preconditions for denying the essence of equal suffrage as such.

6.3.3. Thus, once the legislature has chosen such an electoral system where the members of the Seimas (part thereof) are elected in single-member constituencies, the Constitution, inter alia, Paragraph 1 of Article 55 thereof, gives rise to the duty of the legislature, taking account of all the circumstances significant for the formation of constituencies (inter alia, migration of voters, other demographic factors, the principle of connectivity), to establish a legal regulation under which constituencies are formed in such a way that ensures, to the greatest possible extent, the even distribution of the number of voters among constituencies. This is an essential precondition for ensuring the equality and equal weight of all votes when the results of voting are established. When implementing this duty, which stems from the Constitution, and establishing a relevant legal regulation, the legislature may not create any preconditions for denying, distorting, or unjustifiably limiting equal suffrage.

7. In emphasising the importance of elections to representative institutions, the Constitutional Court has held on more than one occasion that, in a constitutional democracy, special requirements apply to the formation of political representative institutions; these institutions may not be formed in such a way that would raise doubts as to their legitimacy or legality, inter alia, doubts as to whether the principles of a democratic state under the rule of law were upheld in the course of the election of persons to representative political institutions; otherwise, the trust of people in representative democracy, state institutions, and the state itself would be undermined (inter alia, the Constitutional Court’s rulings of 1 October 2008 and 29 March 2012).

The Constitution gives rise to the duty of the legislature to establish, by means of a law, such a legal regulation that ensures the fairness and transparency of the process of election to the Seimas, both of which are necessary preconditions for the trust of the Nation in its representation; if the legislature fails to comply with these requirements, which stem from the Constitution, and fails to establish a mechanism for ensuring democratic, free, and fair elections, there might always be doubts as to the legality of the election of the members of the Seimas (the Constitutional Court’s conclusions of 5 November 2004, 7 November 2008, 26 October 2012, and 10 November 2012).

III

1. In the context of this constitutional justice case, consideration should be given to the relevant international legal norms consolidating universally recognised electoral rights, inter alia, equal suffrage, adherence to which is an obligation assumed by the Republic of Lithuania.

1.1. On 10 December 1948, the General Assembly of the United Nations adopted resolution 217 A (III), by which the Universal Declaration of Human Rights was affirmed and adopted. The Republic of Lithuania proclaimed its commitment to follow the Universal Declaration of Human Rights through Item 22 of the Declaration of 16 February 1949 adopted by the Council of the Lithuanian Freedom Fight Movement and, subsequently, through the Resolution of the Supreme Council “On the Accession of the Republic of Lithuania to the Documents of the International Bill of Human Rights” of 12 March 1991.

Article 21(3) of the Universal Declaration of Human Rights stipulates that the will of the people, which is the basis of the authority of government, is expressed in periodic and genuine elections, which are based on universal and equal suffrage and are held by secret vote or by equivalent free voting procedures.

1.2. By adopting the aforementioned Resolution of the Supreme Council “On the Accession of the Republic of Lithuania to the Documents of the International Bill of Human Rights” of 12 March 1991, the Republic of Lithuania acceded to the International Covenant on Civil and Political Rights of 1966, which entered into force with respect to the Republic of Lithuania on 20 February 1992. Under Article 25(b) of the International Covenant on Civil and Political Rights, every citizen has the right and the opportunity, without distinction of any kind and without unreasonable restrictions, to vote and to be elected at genuine periodic elections, which are based on universal and equal suffrage and are held by secret ballot, guaranteeing the free expression of the will of the electors.

The United Nations Human Rights Committee, in its General Comment 25 (57) of 1996, when interpreting Article 25 of the International Covenant on Civil and Political Rights, held that the principle “one person, one vote” must be applied, also that, within the framework of the electoral system of each state, the vote of one elector should be equal to the vote of another, and that the drawing of electoral boundaries should not exclude or unreasonably restrict the right of citizens to choose their representatives freely. It should be noted that the United Nations Human Rights Committee recognised that Slovakia had violated Article 25 of the International Covenant on Civil and Political Rights specifically for the reason that, in organising and holding the election of municipal members, the boundaries of electoral districts had been drawn in such a manner that had led to substantial differences in the number of inhabitants in these districts (views adopted on 22 July 2002 in the case Mátyus v. Slovakia, communication No. 923/2000).

1.3. Article 3 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (hereinafter referred to as the Convention) consolidates the right to free elections (the Convention and Protocol No. 1 entered into force with respect to the Republic of Lithuania on 20 June 1995 and 24 May 1996, respectively). The European Court of Human Rights (hereinafter referred to as the ECtHR) has noted in its case-law that this fundamental principle guarantees an effective political democracy, which is of prime importance in the Convention system (judgment of 2 March 1987 in the case Mathieu-Mohin and Clerfayt v. Belgium, petition No. 9267/81, § 47). In the case-law of the ECtHR, it is emphasised that Article 3 of Protocol No. 1 includes the rights to vote and to stand for election; although the sates have a margin of appreciation in establishing the conditions for the implementation of electoral rights, the ECtHR oversees whether the actions taken by the states do not affect the very essence of these rights to such an extent as to deprive them of their effectiveness (judgment of 9 April 2002 in the case Podkolzina v. Latvia, petition No. 46726/99, § 33).

1.4. Thus, international law consolidates the universally recognised electoral rights, inter alia, equal suffrage, which is interpreted to mean that one person has one vote, that the vote of one elector is equal to the vote of another, as well as that states, in establishing the conditions for implementing the electoral rights, may not deny the effectiveness of these rights.

2. In the context of the constitutional justice case at issue, consideration should also be given to the provisions of the relevant documents of the European Commission for Democracy through Law (Venice Commission), which acts as the Council of Europe’s advisory body on constitutional matters and provides legal advice to the Council of Europe’s member states wishing to bring their legal and institutional structures in line with European standards and international experience in the fields of democracy, human rights, and the rule of law.

The Code of Good Practice in Electoral Matters, which comprises the Guidelines on Elections, adopted by the Venice Commission on 5–6 July 2002 at its 51st Plenary Session, and the Explanatory Report, adopted by the Venice Commission on 18–19 October 2002 at its 52nd Plenary Session, lays down the underlying principles of European electoral heritage, inter alia, the principle of equal suffrage.

2.1. The Guidelines on Elections define, inter alia, the content of equal suffrage. Equal suffrage, among other things, means that each voter has, in principle, one vote and that each vote has equal power. In accordance with the requirement of equal voting power, there must be a clear and balanced distribution of seats among constituencies on the basis of such criteria as population, the number of resident nationals, or the number of voters. The geographical criterion and administrative, or possibly even historical, boundaries may be taken into consideration. The permissible departure from the norm should not be more than 10 percent and should certainly not exceed 15 percent except in special circumstances (protection of a concentrated minority, sparsely populated administrative entity).

2.2. In the Explanatory Report, it is indicated that the establishment of constituencies is often (rightly or wrongly) regarded as a decisive factor in determining election results; therefore, it is necessary to avoid not only any abuse that is favourable to a party in power, but also to avoid the appearance that there is any abuse. One of the ways to avoid abuses is to determine, in the Constitution or a legal act ranking above ordinary laws, those elements of the electoral system that are most vulnerable, inter alia, the electoral system itself, constituencies, or the rules governing the establishment of constituencies.

2.3. Thus, according to the Code of Good Practice in Electoral Matters, adopted by the Venice Commission, the principle of equal suffrage, which is one of the underlying principles of the European electoral heritage, entails that each voter is entitled to one vote and that each vote has equal power, also that, in drawing constituencies, the permissible deviation in the number of voters or inhabitants from the norm should not be more than 10 percent and should certainly not exceed 15 percent except in special circumstances.

It should be noted that the Committee of Ministers of the Council of Europe, in its declaration of 13 May 2004, acknowledged that the aforementioned Code of Good Practice in Electoral Matters, adopted by the Venice Commission, is a fundamental reference document on electoral matters; the Committee of Ministers of the Council of Europe called on governments, parliaments, and other relevant authorities in the member states to take account of the Code of Good Practice in Electoral Matters and to have regard to it, within their democratic national traditions, when drawing up and implementing electoral legislations.

3. In the context of the constitutional justice case at issue, mention should also be made of the relevant provisions of the documents of the Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe (hereinafter referred to as the OSCE), which carries out election observation in the participating States of the OSCE, assesses whether organised elections comply with the OSCE obligations, other international standards, and national legal acts applicable to democratic elections, and provides support to state authorities in improving electoral procedures.

3.1. In the report “Existing Commitments for Democratic Elections in OSCE Participating States”, prepared on October 2003 by the OSCE Office for Democratic Institutions and Human Rights, it is noted that the boundaries of constituencies should be drawn in a manner compliant with equal suffrage, so that there is an approximately equal number of voters per elected representative in each district; existing administrative divisions or other relevant factors (including those of a historical, demographic, or geographical nature) may be reflected in election districts, provided the design of the districts is consistent with the equality of voting and fair representation for different groups in society.

3.2. In the Election Observation Handbook (2010, sixth edition) of the OSCE Office for Democratic Institutions and Human Rights, it is indicated that equal suffrage entails that the vote of each citizen should have the same weight, as well as that, under majority voting systems, equal suffrage means that the size of the electorate or population of electoral constituencies should be approximately equal.

3.3. In the Election Assessment Mission Report “Republic of Lithuania. Parliamentary Elections, 14 October 2012” (3 January 2013) of the OSCE Office for Democratic Institutions and Human Rights, it was pointed out that the amendments adopted in Lithuania in 2002, which had raised the permissible limit on deviation in the number of voters in single-member constituencies (from 10 percent to 20 percent), had resulted in a large disparity in the population size among certain constituencies; this circumstance was stated to have affected the equality of the vote and was held to be contrary to international good practice.

3.4. Thus, the OSCE Office for Democratic Institutions and Human Rights, which carries out election observation in European states, follows the position that the vote of each citizen should have the same weight and that constituencies must be drawn in such a manner that there is an approximately equal number of voters per elected representative in each district. According to the OSCE Office for Democratic Institutions and Human Rights, the consolidation of the regulation that the number of voters in a single-member constituency in Lithuania may deviate up to 20 percent from the average number of voters in all single-member constituencies leads to a large disparity in the number of voters among constituencies and affects the equality of votes cast by voters.

4. In summarising the aforementioned international obligations and good electoral practice, it should be noted that the universally recognised equal suffrage means that each voter is entitled to one vote, that the vote of each voter is equal to the vote of another voter, and that the vote of each voter has the same weight; constituencies should be drawn in such a manner that the size of the electorate or population in them is equal as far as possible. In accordance with international good electoral practice, the permissible deviation in the number of voters or inhabitants from the norm should not be more than 10 percent and may exceed 15 percent only in special circumstances.

IV

1. The issue of equal suffrage, from the aspect relevant to this constitutional justice case, has also been considered in the case-law of constitutional justice institutions of foreign states.

1.1. The Constitutional Court of the Republic of Hungary, in its decision No. 22/2005 (VI.17.) AB of 14 June 2005 (case 4/B/2005), among other things, examined whether the principle of equal voting rights, as consolidated in the Constitution, gives rise to the requirement that the numbers of voters in constituencies be as close to one another as possible. In this decision, it was held that absolute equality is not possible in respect of the weight of votes. The Constitutional Court of the Republic of Hungary addressed the constitutional requirement to the legislator that the numbers of persons with a right to vote in single-member constituencies must be as close to one another as possible and that differences are only allowed on the basis of due constitutional grounds. It was held that, since an equal voting right is considered a particularly important civil right, any restriction on the equality or generality of this right can only be accepted in the case of due constitutional reasons. The greater the gap among the numbers of persons with a right to vote in various constituencies, the stronger the constitutional reason is required to justify the deviation. At the same time, even slight—statistically insignificant—differences may be unconstitutional if they result from the manipulation of the borders of constituencies. As judged by the Constitutional Court of the Republic of Hungary, it is contrary to the principle of equal voting rights when the number of voting citizens in a single-member constituency is twice the corresponding figure of another single-member constituency. In such a case, the difference in the number of voters is so great that it cannot be constitutionally justified on any basis.

1.2. The Constitutional Council of the French Republic (hereinafter referred to as the Constitutional Council), in its decision No. 2008-573 DC of 8 January 2009, held that, for the election of legislatives bodies, the boundaries of electoral constituencies must be established on predominantly demographic lines and in a manner as far as possible consistent with the principle of the equality of suffrage. The Constitutional Council noted that a deviation of up to 20 percent in the size of constituency population from the average constituency population allowed in overseas départements and communities, in itself, does not undermine the constitutional principle of the equality of suffrage, but it was pointed out that the application of such a deviation could lead to situations where the principle of the equality of suffrage would be undermined or where electoral boundaries would be established in an abusive manner in order to reach favourable election results. Therefore, this maximum difference between the population of each constituency and the average population was regarded as permissible only in exceptional, duly justified, cases. As held by the Constitutional Council, the application of this measure must be limited and, in each specific case, must be based on clear obligatory requirements of the public interest (as, for instance, in relation to geographical considerations) and must be invoked in conformity with the principle of proportionality. The Constitutional Council noted that a different interpretation of the legislative provision consolidating the aforesaid deviation would be in conflict with the Constitution.

1.3. The Constitutional Court of the Republic of Croatia, in its notification No. U-X-6472/2010 of 8 December 2010 to the Parliament of the Republic of Croatia, pointed out that the equality of votes and the constitutionality of elections in general directly depend on the equal distribution of voters in constituencies: elections would not be in conformity with the Constitution if an excessive difference in the number of voters per general constituency could directly affect the election results. The Constitutional Court of the Republic of Croatia emphasised the necessity to comply with the requirement that, having regard to the permitted difference in the number of voters of up to 5 percent in constituencies, there must be the equal number of voters in each constituency. It was indicated that the division into constituencies cannot be regulated once and for all. Migration processes demand that constituencies should constantly be revised in view of the changing circumstances. In the notification, it was indicated that, when constituency boundaries are drawn, it is also important to observe other electoral standards: wherever possible, the boundaries of constituencies must coincide with the administrative boundaries of administrative-territorial units; the boundaries of a constituency must comply with the requirements of continuity and compact territory; however, it is impermissible to violate the primary standard: the equal weight of votes in each of constituencies.

2. To summarise the foregoing overview of the case-law of constitutional justice institutions of foreign states, it should be noted that the establishment of electoral constituencies must be consistent with equal suffrage: as far as possible, constituencies must comprise the equal number of inhabitants or voters; where there are differences in this number among constituencies, these differences must be constitutionally justified.

V

On the compliance of Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas with the Constitution

1. In the constitutional justice case at issue, the group of members of the Seimas, the petitioner, requests an investigation into whether Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas, insofar as it permits a higher than 10-percent deviation in the number of voters in a single-member constituency from the average number of voters in all single-member constituencies, is in conflict with Article 4 and Paragraph 1 of Article 55 of the Constitution.

In principle, the doubts of the petitioner are substantiated on the fact that the consolidation of the provision of Paragraph 1 of Article 9 of the Law on Elections to the Seimas, which permits a deviation of more than 10 percent in the number of voters in a single-member constituency from the average number of voters in all single-member constituencies, leads to a large disparity in the number of voters among separate single-member constituencies, the inequality of votes, and the violation of one of the principles of democratic elections—the principle of equal suffrage. In the opinion of the petitioner, the legal regulation in question would be consistent with the Constitution if it were established that a deviation in the number of voters in a single-member constituency must not exceed 10 percent of the average number of voters in all single-member constituencies.

2. As mentioned before, Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas prescribes: “For the organisation and conduct of elections, the territory of the Republic of Lithuania shall be divided into 71 single-member constituencies, taking into consideration the number of voters in the constituency, the division of the territory of the Republic of Lithuania into single-member constituencies during the previous elections to the Seimas, and the administrative-territorial division of the Republic of Lithuania. A constituency shall be formed from polling districts that have common boundaries. The number of voters in a constituency must be from 0.8 to 1.2 of the average number of voters in all single-member constituencies. The Central Electoral Commission, no later than 95 days before the election, shall establish and, no later than 90 days before the election, shall announce on its website the list of polling districts forming constituencies, the addresses and telephone numbers of their polling stations, the number of voters in constituencies, and the addresses and telephone numbers of constituency electoral committees.”

Thus, under the legal regulation laid down in Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas, for organising and conducting elections, the territory of the Republic of Lithuania is divided into 71 single-member constituencies; the number of voters in each constituency must be from 0.8 to 1.2 of the average number of voters in all single-member constituencies. It has been mentioned that, expressed in percentage terms, the said 0.8–1.2 interval of the permitted differences in the number of voters means that the number of voters in a single-member constituency must be from 80 percent to 120 percent of the average number of voters in all single-member constituencies, i.e. a deviation in the number of voters in a single-member constituency must not exceed 20 percent of the average number of voters in all single-member constituencies.

Consequently, under this legal regulation, the number of voters in a single-member constituency may be up to 20 percent lower or up to 20 percent higher than the average number of voters in all single-member constituencies.

3. In deciding whether Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas, to the extent specified by the petitioner, is in conflict with Paragraph 1 of Article 55 of the Constitution, it should be noted that, as mentioned before:

the members of the Seimas are elected, inter alia, on the basis of equal suffrage, which, among other things, means that, in the course of organising and conducting elections, all voters must be treated equally and that the vote of each voter is equal to and has the same weight as the vote of any other voter when the results of voting are established;

having decided on such an electoral system where the members of the Seimas (part thereof) are elected in single-member constituencies, the legislature has the duty, which stems from the Constitution, inter alia, Paragraph 1 of Article 55 thereof, to establish a legal regulation ensuring that the number of voters in these constituencies does not differ to such an extent that creates the preconditions for distorting the equal weight of votes when the results of voting are established; the greater the difference in the number of voters among separate constituencies, the greater the distortion of the equal weight of votes can be when the results of voting are established; however, this does not mean that, under the Constitution, any differences in the number of voters among separate constituencies are not possible at all;

under the Constitution, in order to maintain a balance among various constitutional values, inter alia, to ensure the implementation of the requirements stemming with regard to the formation of constituencies from the universally recognised principles of democratic elections, such as equal suffrage, fair competition among subjects exercising their passive electoral right, and the transparency of the electoral process, it is permissible to establish such a legal regulation that permits certain differences in the number of voters among constituencies;

Paragraph 1 of Article 55 of the Constitution, which, inter alia, consolidates equal suffrage, gives rise to the duty of the legislature, after taking into account all the circumstances that are significant for the formation of constituencies (inter alia, migration of voters, other demographic factors, the principle of the connectivity of constituencies), to establish a legal regulation under which constituencies are drawn in such a way that, to the greatest possible extent, ensures the even distribution of the number of voters among constituencies; the even, as far as possible, distribution of the number of voters among constituencies is an important precondition for ensuring the equality and equal weight of all votes when the results of voting are established.

4. It has been mentioned that, under Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas, the number of voters in a single-member constituency may be up to 20 percent lower or up to 20 percent higher than the average number of voters in all single-member constituencies. It has also been mentioned that, due to such a permitted deviation, the largest constituency is as much as 1.5 times larger than the smallest constituency according to the number of voters.

It should be noted that, as it is clear from the material of this constitutional justice case, taking account of the circumstances significant for the formation of constituencies, the institution responsible for the formation of constituencies and the organisation of elections may redraw all single-member constituencies in such a way that a deviation in the number of voters in them would be twice as low as the deviation limit established under Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas (letter No. 2-1295(1.5) of 31 August 2015 from Zenonas Vaigauskas, Chairman of the Central Electoral Commission).

The material of this constitutional justice case also shows the following: in principle, single-member constituencies can be drawn by applying, with respect to the number of voters in a single-member constituency, a deviation of up to 10-percent from the average number of voters in all these constituencies; in the conditions of Lithuania, the said deviation of not more than 10 percent would be optimal; there are no such circumstances in Lithuania that, in terms of the connectivity of territory or in view of certain groups of persons living therein, could be treated as special and, due to this, necessitating the application of a deviation of more than 10 percent from the average number of voters.

In this context, it needs to be mentioned that the overviewed development of the legal regulation in question from the moment of the establishment of single-member constituencies up to the consolidation of the impugned provision makes it clear that, during a certain period, the Law on Elections to the Seimas provided that a limit on deviation in the number of voters in a single-member constituency from the average number of voters in all single-member constituencies could be twice as low as that established in Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas.

In the context of the constitutional justice case at issue, it should be noted that, the establishment of the impugned legal regulation, which permits a deviation of up to 20 percent in the number of voters in a single-member constituency from the average number of voters in all single-member constituencies, leads to an obvious disproportion in the number of voters between the largest and smallest constituencies in terms of the number of voters.

5. Thus, it should be held that, since the impugned legal regulation permits a deviation of up to 20 percent in the number of voters in a single-member constituency from the average number of voters in all single-member constituencies, it leads to the situation where the constituency that is largest according to the number of voters is up to 1.5 times larger in terms of the number of voters than the constituency that is smallest according to the number of voters; as a result, single-member constituencies can be drawn in such a way that the number of voters in them will not be, to the possible extent, equally distributed; thus, the preconditions are created for distorting the equality and equal weight of votes when the election results are established. Such a legal regulation does not comply with the requirements stemming from equal suffrage, consolidated in Paragraph 1 of Article 55 of the Constitution.

6. In the light of the foregoing arguments, the conclusion should be drawn that the provision “The number of voters in constituencies must be from 0.8 to 1.2 of the average number of voters in all single-member constituencies” of Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas, insofar as it permits the number of voters in a single-member constituency to differ by up to 20 percent from the average number of voters in all single-member constituencies, is in conflict with Paragraph 1 of Article 55 of the Constitution.

7. Having held this, the Constitutional Court will not further investigate whether Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas, to the extent specified by the petitioner, is in conflict with Article 4 of the Constitution.

8. In the context of the constitutional justice case at issue, mention should be made of the before-discussed standards of international good practice in electoral matters, which show that substantially smaller differences in the number of voters in constituencies are typical of democratic states: as a rule, the permitted divergence in the number of voters does not exceed 10 percent. It should be noted that there are no constitutional arguments against considering these standards of international good practice in electoral matters to be constitutionally well-founded. Thus, when establishing a legal regulation concerning the formation of constituencies, the legislature, having regard to the Constitution, should also take into account the aforementioned standards of international good practice in electoral matters.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that the provision “The number of voters in constituencies must be from 0.8 to 1.2 of the average number of voters in all single-member constituencies” of Paragraph 1 (wording of 6 November 2012; Official Gazette Valstybės žinios, 2012, No. 132-6666) of Article 9 of the Republic of Lithuania’s Law on Elections to the Seimas, insofar as it permits the number of voters in a single-member constituency to differ by up to 20 percent from the average number of voters in all single-member constituencies, is in conflict with Paragraph 1 of Article 55 of the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

Justices of the Constitutional Court:              Elvyra Baltutytė

                                                                                   Vytautas Greičius

                                                                                   Danutė Jočienė

                                                                                   Pranas Kuconis

                                                                                   Gediminas Mesonis

                                                                                   Vytas Milius

                                                                                   Egidijus Šileikis

                                                                                   Algirdas Taminskas

                                                                                   Dainius Žalimas