A Review on the Unconstitutionality of the Ban on Election Campaigning on Election Day : Focusing on Commentary on the Constitutional Court Decision 2018HunBa152, Decided on Dec. 23, 2021

Abstract

In its 2018 Hunba152 decision, the Constitutional Court ruled that Article 254, Paragraph 1 of the Public Official Election Act, which punishes those who campaign on election day, does not violate the freedom of election campaigning or political expression. This paper critically examines the reasoning structure of that ruling and agrees with the conclusion of the dissenting opinion. First, although the majority and dissenting opinions appear to present the same legislative purpose, they differ in their specifics. The legislative purpose of the punishment provision in this case should be limited, as the dissent suggests, to protecting voters’ intentions from coercive means or distorted information. Treating decisions made by voters on election day after receiving non-coercive means and accurate information as not free or irrational is nothing more than a paternalistic view of the state that does not trust voters’ political judgment ability. Second, the court opinion thinks that a total ban is inevitable because there are now more ways to campaign due to the rise of online media. But actually, the development of online media shows that it's no longer possible for the state to fully control campaigning on election day. The idea of a vacuum where all political opinions disappear, as assumed by the court opinion, is not something that can be considered a desirable value in representative democracy. If we accept this reasoning, it’s possible to come up with alternatives for allowed campaigning methods on election day. Third, when considering alternatives, it’s important to note that, compared to other countries, laws that completely ban election-day campaigning are rare. Most countries either only prohibit actions that seriously disrupt the peace on election day or impose spatial restrictions around polling stations, focusing less on controlling information itself and more on maintaining order where voting occurs. Even in countries with total bans, the rise of online media forces a reconsideration of these rules. Trying to control information flow for just one day in an online space that operates across borders is difficult both practically and in terms of fairness. Lawmakers should focus on proactive alternatives, like quickly correcting false information on election day, rather than trying to suppress all information. In the end, the provisions penalizing this case go beyond what’s necessary, limiting both freedom of campaigning and political expression, which violates the constitution. Additionally, for election-related expressions not banned on election day under Articles 93(1) and 58-2 of the Public Official Election Act, it’s important to also consider whether they could be allowed from the perspective of maximizing fundamental rights.