1 Unforeseen circumstances surrounding absentee ballots

Now that the voting age in Japan has been lowered to 18 and older, universities are calling for students living alone to cast absentee ballots. However, at the end of last month, I received information from a certain newspaper company regarding a situation in Hokkaido which concerns a university student who is living alone while leaving his resident register at his parents’ address. It seems that the election administration commission where his parents live refused to register the student to the electoral register, instead erasing the student from the electoral register and interfering with the student’s ability to exercise the right to vote. Afterwards, several different newspaper companies reported that similar measures had been taken in some areas of Tohoku, Shikoku, and Kyushu. In the case of the electoral registers in question, residence in that particular municipality is a requirement for registration. Accordingly, students who had started living alone were refused registration because they no longer reside with their parents (their life is not based in the municipality/there is no condition of residency). However, the overwhelming majority of municipalities do not use such methods. According to the Ministry of Internal Affairs and Communications which oversees the entire election system, even if handling of registration differs depending on the municipality, the recognition of residence is a right of each municipality. Therefore, the correct response for people changing address is to transfer their resident register. According to the ministry, this is the only viable solution. Still, due to the implementation of such methods by certain municipalities, more than 280 university students from Hokkaido alone will be unable to vote in the upcoming election via the electoral register at their parents’ address. The number of students denied the right to vote throughout Japan is extremely high. Upon being denied the right to vote even after taking procedures for absentee balloting, some of these students may feel surprised and angry. They may feel that they were given incorrect information by their respective universities. According to the newspaper companies supplying this information, such handling of the electoral register has existed for some time. However, now that the voting age has been lowered to 18 and older, this issue has been exposed for the first time. Such circumstances were unforeseen by universities.

2 Is there basis for refusing registration of such university students to the electoral register at their parents’ address?

As discussed above, registration to the electoral register is linked to the requirement of residency. On the other hand, the electoral register is created based on information listed in the basic resident register (register organizing residence certificates into households). A residence certificate provides notarization (public certification) of date of birth, address, and other information related to the resident. Accordingly, the residence certificate is used as the most reliable source of personal information when creating the electoral register. However, in some cases, a person (a person living alone) may not actually live at the address (their parents’ address) listed on the residence certificate. In such cases, the current problem occurs when the electoral register is created by giving priority to where a person actually resides instead of information listed on the residence certificate. The Judgment of the Grand Bench by the Supreme Court of Japan dated October 20, 1954 (Ibaraki University Seirei Dormitory Case) is often cited as basis for giving priority to the actual place of residence. According to this judgment, “the lawful address is the actual place where a person resides.” The judgment opined that registration to the electoral register should be based on the actual place where a person resides and stated that the university dormitory is the actual place of residence for university students. This means that the resident register which is equivalent to the current residence certificate is nothing more than one element for determining the actual place of residence. The Judgment of the Matsue Branch of the Hiroshima High Court dated December 20, 2002 (Kanazawa University Student Case) is another judgment which opined that since a university dormitory is the actual residence of a university student, registration to the electoral register should be performed at the address of the university dormitory that is the actual residence of the university student, regardless of whether the residence certificate is registered to the parents’ address. Accordingly, this judgment deems it lawful to refuse registration to the electoral register at the parents’ address. Furthermore, in this case, the student had not transferred his residence certificate to the address of the university dormitory. Consequently, the student was not registered to electoral register at the address of the university dormitory and was unable to exercise the right to vote. The circumstances in this judgment are exactly the same as the issue which has been raised regarding the upcoming election.

3 Is it reasonable not to register university students to the electoral register at their parents’ address? Does such handling pose any problems?

When viewed this way, it seems that not registering university students who live alone to the electoral register at their parents’ address is the correct way to handle the circumstances; it seems that registering the students to the electoral register at their parents’ address according to the residence certificate would be wrong. Municipalities which register students to the electoral register at their parents’ address according to the residence certificate assert that confirming actual residence for each individual case is troublesome and impossible. If that is the only reason, then it cannot be said that any problems exists with the decision not to register students. Some people feel that the discrepancy in handling among municipalities is a problem and standards should be implemented. This is certainly true. Still, such assertions do not dispute the decision not to register students; rather, they are based on the idea that discrepancies in registration or non-registration are an unacceptable inconvenience. However, is this really the extent of the problem? As a result of not being registered to the electoral register at their parents’ address, students are denied the ability to exercise their right to vote. This is the most important right of citizens. Restrictions on exercising the right to vote are limited to cases with “reasons deemed as unavoidable” (Judgment of the Grand Bench by the Supreme Court of Japan dated September 14, 2005 (Case of Depriving Japanese Citizens Living Abroad of the Voting Rights)). In the current case, university students who do not live at their parents address cannot vote as long as their residence certificate is assigned to their parents’ address. Even if they transfer their residence certificate to another municipality, they must wait three months before obtaining the right to vote. Are these truly reasons deemed as unavoidable for denying (restricting) the ability to exercise the right to vote? Such logic does not coincide with the intent of legal amendments (Article 21-2) which were made to address what is known as the suffrage blank^[1]. In other words, without any rational grounds, the conventional suffrage blank is being forced upon only university students who live alone.

4 Administration which follows the intent of the election system!

Voting in elections is performed based on the electoral register. A person who is not registered to an electoral register cannot vote. The original intent of this system was to prevent voting by a person who does not have the right to vote, and to prevent a person who possesses the right to vote from voting twice. In order to fulfill this intent, electoral registers must be accurately maintained. However, the right to vote in national election has now been granted to citizens aged 18 and older (Article 9-1 of the Public Offices Election Act). In this case, residency requirements are not included. The right to vote in local elections has been granted to citizens who are aged 18 and older and who have lived continuously within the limits of the municipality for at least three months (Article 9-2).
Residency requirements are necessary for local elections because the Constitution states that, from the perspective of local autonomy, elections for positions such as the heads of local governments are to be performed by citizens of that local government (Article 93-2 of the Constitution). However, the same electoral register is used for both national elections and local elections, and only people who meet the residency requirement are registered. The aforementioned judgment by the Matsue Branch of the Hiroshima High Court asserted that strict enforcement of the residency requirement is necessary in order to maintain an accurate electoral register. Accordingly, the court judged that the correct site of the electoral register for university students is the dormitory where they actually reside, despite their residence certificate being registered to another address. However, I believe that creating the electoral register based on residence certificates is sufficient to maintain the accuracy of the electoral register as stated above. Further consideration of the actual state of residence is unnecessary. This is particularly true for national elections in which the residence requirement is not a basic requirement for the right to vote. Furthermore, in case of national elections, recognizing the right to vote or cast absentee ballots at their parents’ address for university students who live alone would not result in circumstances which harm the fairness of elections (aforementioned Judgment of the Grand Bench by the Supreme Court of Japan dated September 14, 2005). The administration of the election system must consider the intent of the election system. The handling discussed in this article assigns special priority to the residency requirement in national elections, despite this requirement being nothing more than technical issues related to the creation of the electoral register. As such, these are unconstitutional measures which do not attempt to understand the intent of the election system. Unfortunately, this problem cannot be rectified in time for the upcoming election. However, I believe that revisions must be made immediately.

Notes

Yuzo Nakanishi
Professor Emeritus, Chuo University
Areas of Specialization: Administrative Law and Public Service Act

Yuzo Nakanishi was born in Tokyo in 1942.
He graduated from the Faculty of Law, Chuo University in 1965.
He completed the Master’s Program in the Chuo University Graduate School of Law in 1967 with a master’s degree.
He became Research Associate (administrative law) in the Faculty of Law, Chuo University in 1967.
He became Assistant Professor at Chuo University in 1971.
He became Professor at Chuo University in 1978.
He received the title of Professor Emeritus from Chuo University in 2014.

Since he was a Research Associate, he has been especially engaged in research on public service act, as well as in administrative law research/education in general.

His major publications include Administrative Law 1 [Gyoseiho 1] (Chuo University Distance Learning Division, 2002), and Types of Public Servants [Komuin No Shurui] (Yuhikaku, 1985), and more.