Note: 
This summary constitutes no part of the Judgment but is prepared by the Department of Clerks for the Constitutional Court only for the readers’ reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph. 
In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.

Headnotes

    The Taiwan Constitutional Court (TCC) declared Article 69, Paragraph 1, First Sentence of the Public Officials Election and Recall Act (hereinafter, the “Election and Recall Act”) unconstitutional. 

    The TCC ruled that within the scope that the provision limits recounts to specific elections, the provision’s differential treatment did not pass intermediate scrutiny, thus violating the right to equality. 

Background Note

    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 because recounts for township representative elections are not stipulated in the Election and Recall Act. 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).
 

Summary of the Judgment 

Holding

1. Article 69, Paragraph 1, First Sentence of 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." ^[1] This provision excluded those who came first in the losing candidates of elections not listed in this provision from filing for a recount with the court if they lost within the margin of 0.3 percent of the valid ballots. Within this scope, the disputed provision is unconstitutional, as it violates the right to equality under Article 7 of the Constitution. The legislators shall review and amend pertaining regulations as soon as possible. Before the amendment, all losing candidates with the highest votes and lost within the margin of 0.3 percent may, within seven days after the polling day, apply to the court with jurisdiction to seal all or part of the polling station’s elector lists and ballots, and complete the recount of the sealed stations within twenty days. 
2. Taiwan High Court Civil Order 112-Hsuan-Kang-1 of February 10, 2023, should be quashed and remanded to the Taiwan High Court.
3. The rest of the petition is dismissed.

Reasoning

1.    Level of scrutiny:

    In principle, the legislators shall have a certain extent of legislative discretion when drafting election laws and their remedies so long as the legislation meets the requirement of equality under Article 7 of the Constitution. Considering that elections are of great significance to democratic politics and that the Constitution protects the people's electoral rights, if relevant laws were designed to have differential treatment, the goal of this differential treatment should be of important public interest, and the classification should be substantively related to the goal. (Intermediate scrutiny) 【16】

2.    Review of the TCC: 

    The disputed provision stipulated the court-conducted recount procedure to ensure the accuracy of election results, maintain a fair election, and protect the people's right to hold public office. For all democratic elections, resolving electoral disputes quickly is also of important public interest constitutionally. 【18-19】

    However, the disputed provision has created a differential treatment in recounts between the elections of indigenous/district members of the Legislative Yuan, municipal mayor, and county/city governor and that of the other public official elections. This classification is based on the types of elections. 【20】

    However, the goal for this classification is not expressly provided in the ratio legis of the disputed provision. Furthermore, all elections required by the Constitution or the laws should be an important segment of democratic politics. They are all of the common goals mentioned above and are no different from each other even though different in levels (central or local) and natures (representative or administrative leader). The classification stipulated in the disputed provision is inappropriate and not of important public interest. Saving on judicial resources and reducing administrative costs are also not of important public interest in this respect.  【21-23】

    In terms of the relation between the adopted classification and the legislative purpose of the disputed provision, the classification has factually deviated from its purpose instead of substantively related to it. Therefore, the disputed provision does not meet the requirement of the right to equality under the Constitution. 【24】
 

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