공직선거법상 신체적 장애인을 위한 비가족투표보조인조항의 위헌성 – 헌재 2020. 5. 27. 2017헌마867 결정에 대한 평석을 겸하여 -

Abstract

The voting assistant system is an election assisting procedure that helps voters who are unable to mark the ballot paper on their own due to physical disabilities with a voting assistant to actually exercise their suffrage. This voting assistant system contributes to the realization of the principle of universal suffrage by substantially guaranteeing the suffrage of disabled people on the one hand, but on the other hand, the principle of secret ballot is compromised by exposing the contents of the voting to the voting assistant. The Constitutional Court ruled in its decision (2017Hun-ma867, May 27, 2020) as follows: the provisions of the Public Official Election Act, which requires two voting assistants to ensure the fairness of the election, if the voter nominates a non-family member as a voting assistant, does not violate the principle of the prohibition of excessive restriction. The decision of the Constitutional Court can be refuted as follows. Even if only one voting assistant is required, if the voting procedure is strengthened, such as imposing an oath-swearing on the voting assistant, there can be a legislative alternative by which the principle of secret ballot can be less comprised and by which the fairness of the election can be achieved at the same level as the existing one (compared to the current Public Official Election Act, which requires two voting assistants). In addition, the provisions of the Public Official Election Act above prevent the voter from deciding on his own the number of voting assistants he needs, and may disclose the contents of the voter's voting to two voting assistants, which will further compromise the principle of secret ballot. Since the content of the vote is the most confidential political intention, exceptions to this principle of secret ballot should be minimized as much as possible. If the voter, who is accompanied by only one voting assistant, selects another voting assistant from among the voting clerks, it will expose his confidential political intention to an unfamiliar third party whom he has no trust in, regardless of the voter's will. This will significantly compromise the principle of secret ballot. In addition, since the principle of free voting is guaranteed on the premise of the principle of secret ballot, if the principle of secret ballot is further compromised, it will make the voter feel less free and will further compromise the principle of free voting. Even considering the public interest of the principle of universal suffrage and election fairness that the provisions of the Public Official Election Act above are intended to establish and realize, the restrictions on the principle of secret ballot and principle of free voting appear to be difficult to justify. Therefore, the provisions of the Public Official Election Act above seem to violate the principle of the prohibition of restrictions and infringe on the claimant's suffrage.