On the different number of voters in single-member constituencies
The ruling of the Constitutional Court of the Republic of Lithuania of 20 October 2015
ON THE DIFFERENT NUMBER OF VOTERS IN SINGLE-MEMBER CONSTITUENCIES
In this ruling adopted in a case initiated by a group of members of the Seimas, the Constitutional Court recognised that the provision of Paragraph 1 (wording of 6 November 2012) of Article 9 of the Law on Elections to the Seimas, under which deviation by 20 percent of the number of voters in each single-member constituency from the average number of voters in all single-member constituencies is allowed, was in conflict with the Constitution.
The Constitutional Court recalled the fact that the principle of equal suffrage is one of the generally recognised principles of democratic elections to political representative institutions consolidated in the Constitution. This principle means, among other things, that in the course of organising and conducting elections, all voters must be treated equally, and that the vote of each voter has an equal value with regard to votes of any other voters and is of equal significance in establishing the results of voting. Under the Constitution, when regulating election relations by law, one must ensure an equal active electoral right of all the voters (the right to vote, i.e. to exercise the active electoral right), as well as an equal passive electoral right of all the candidates (the right to be registered in an election as a candidate, i.e. the right to stand for election). The legislature, by consolidating, by means of a law, the system for election of members to the Seimas, by establishing the basis and procedure for organising elections, is not allowed to deny, distort or restrict the equal suffrage itself, nor is it allowed to create any legal preconditions for other subjects to do so.
It is noted in the ruling that, having opted for such an electoral system where members (or part thereof) of the Seimas are elected in single-member constituencies, the duty stems for the legislature from the Constitution, inter alia, Paragraph 1 of Article 55 thereof, under which the members of the Seimas are elected on the basis of equal suffrage, to establish the legal regulation ensuring that the number of voters in these constituencies would not have such differences which would create preconditions for distorting the equal value of voters’ votes in establishing the results of voting. The bigger the difference in the number of voters among separate constituencies, the bigger possible distortion of the equal value of voters’ votes in establishing the results of voting. However, it does not mean that, under the Constitution, any differences in the number of voters among separate constituencies are not possible at all.
It is held in the ruling that the number of voters in the constituencies is subject to change due to various objective reasons (for example, migration of voters, other demographic factors), therefore, while forming the constituencies, it is impossible to assess exactly what the number of voters will be in each constituency on the day of election. The Constitution does not require unreasonable things, and legal acts may not demand impossible things, either. Thus, under the Constitution, there is no requirement for completely the same number of voters in all constituencies.
The Constitutional Court also noted that ensuring such generally recognised democratic principles of elections as fair competition between subjects implementing the passive electoral right and the transparency of the electoral process implies certain requirements for the formation of constituencies: constituencies must satisfy the principle of connectivity, they must be compact, and their boundaries must be clear and easy to understand. In an attempt to ensure the implementation of these requirements, such a legal regulation may be established, under which certain differences in the number of voters among constituencies would be allowed, however, such differences should not create preconditions for distorting the equal value of voters’ votes in establishing the results of voting and for denying the essence of equal suffrage as such.
Thus, having chosen such an electoral system where members (or part thereof) of the Seimas are elected in single-member constituencies, a duty arises from the Constitution, inter alia, Paragraph 1 of Article 55 thereof, for the legislature, after it has taken into account all the significant circumstances (such as migration of voters, other demographic factors and the principle of connectivity), to establish such a legal regulation regarding the formation of constituencies, whereby an even distribution (as much as possible) of the number of voters among them would be ensured. This is an important precondition for ensuring the value of votes of all voters in establishing the results of voting.
While assessing the impugned provision of the Law on Elections to the Seimas, under which the number of voters in a single-member constituency may be both either by 20 percent smaller or by 20 percent larger than the average number of voters in each single-member constituency, the Constitutional Court held that, due to such a deviation from the size between the largest and smallest constituency, according to the number of voters, an obvious disproportion of the number of voters is created—as regards the number of voters, the largest constituency is even 1.5 times larger than the smallest constituency. As it is obvious from the material of the case, it is possible to form all single-member constituencies so that the deviation of the number of voters in them from the average number of voters would be two times smaller than the limit of deviation consolidated in the impugned provision. Consequently, the legal regulation, whereby the deviation of the number of voters of up to 20 percent is allowed, does not ensure an even distribution (as much as possible) of the number of voters among single-member constituencies, and, thus, preconditions for distorting the equal value of voters’ votes in establishing the results are created. While taking account of the above, it was recognised that this legal regulation was in conflict with Paragraph 1 of Article 55 of the Constitution.
In this ruling, attention was paid to the standards of international good practice in electoral matters consolidated in the documents of the European Commission for Democracy through Law (the Venice Commission) which show that substantially smaller differences in the number of voters in constituencies are typical of democratic states—usually the deviation of the number of voters allowed does not exceed 10 percent. In the opinion of the Constitutional Court, there are no constitutional arguments that these standards of international good practice in electoral matters could not be deemed constitutionally grounded, thus, when establishing the legal regulation on the formation of constituencies and heeding the Constitution, the legislature should take such standards into consideration.