Case News

The TCC delivers its Judgment 112-Hsien-Pan-18 (2023)

    TAIPEI, November 22, 2023 —The Taiwan Constitutional Court (TCC) delivered its Judgment of the “Case on Election Recounts” on November 17, 2023.

Principal Facts, Issues, and Procedure of the Case

    Article 69, Paragraph 1, First Sentence of the Public Officials Election and Recall Act (hereinafter "Election and Recall Act") stipulates: "If the difference in votes between the top two candidates in a regional election for district member of the Legislative Yuan, governor of a municipality (municipal mayor), or the governor of a county/city, or between the third and fourth place candidate of indigenous member of the Legislative Yuan, is within 0.3 percent of the total valid ballots, the candidates with the second highest votes for district member of the Legislative Yuan, municipal mayor, or county/city governor, or the candidate with the fourth highest number of votes for indigenous member of the Legislative Yuan may apply to seal all or part of the list of electors and ballots within seven days after the polling day to the court with jurisdiction prescribed in Article 126; The ballot recounting of the sealed polling station shall be completed within twenty days and the result of the recount shall be notified to the election commission in charge."* A question is raised as to whether losing candidates of elections other than those mentioned in this provision can file for a recount.

    In 2022, the petitioner (Kao-Chieh YEH) ran for township representative of the Fourth Electoral District of Xinfeng Township, Hsinchu County. The township should elect five representatives, but the petitioner came in sixth place by the margin of two ballots (within the margin of 0.3 percent of the valid votes). The petitioner filed for a recount with the district court but was dismissed. After an unsuccessful final appeal to the Taiwan High Court, the petitioner filed for constitutional review, arguing that both the disputed provision and the Taiwan High Court's dismissal ruling were unconstitutional. The TCC admitted the case and ordered sua sponte for a preliminary injunction to prolong the safekeeping period of the elector lists and ballots via TCC Order 112-Hsien-Chan-Tsai-1 (2023). 

    Judgment 112-Hsien-Pan-18 (2023) was announced on November 17, 2023. Justice Tzung-Jen TSAI wrote this Judgment. Justice Tai-Lang LU (joined by Chief Justice Tzong-Li HSU, Justice Chong-Wen CHANG, Justice Jui-Ming HUANG, Justice Sheng-Lin JAN, and Justice Jau-Yuan HWANG) filed an opinion dissenting in part. 

Decision of the Court

    The TCC declared Article 69, Paragraph 1, First Sentence of the Election and Recall Act unconstitutional, ruling that within the scope of the provision limiting recounts to specific elections, it has created a differential treatment that violated the right to equality. 

    In its holding, the TCC requested the legislators to amend relevant regulations promptly. In the meantime, all losing candidates with the highest votes and lost within the margin of 0.3 percent may file for recounts under Article 69, Paragraph 1, First Sentence of the Election and Recall Act. 

    The TCC quashed the ruling of Taiwan High Court Civil Order 112-Hsuan-Kang-1 (2023) and remanded the case to the Taiwan High Court. 
 

* The official English version of this clause needs adjustment to accurately convey the legal issue in this Judgment. The adjusted version in this Case News is provided by the Department of Clerks for the Constitutional Court and does not have any binding effects.

Notes:

1. Full texts of the Judgment and Opinions are available on the TCC website here  (Traditional Chinese). An English summary of this Judgment will be available later on the TCC English website.
2. The TCC's Case News is prepared by the Department of Clerks for the Constitutional Court (Judicial Yuan) for information only and does not bind the Court. 
3. In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.