The Role and Quality of South Korea's Election Commission

[Editor's Note]

According to research by the Varieties of Democracy Institute (V-Dem), the fairness and freedom of South Korean elections have significantly improved since democratization. Amidst institutional changes, the National Election Commission (NEC) has consistently maintained its independence and neutrality, earning a higher level of public trust compared to the National Assembly or the government. Kang Woo-chang, a professor at Korea University, argues that South Korea possesses fundamentally high state capacity, with its bureaucratic capacity being among the world's best. Based on an analysis of the NEC's capabilities, this paper proposes strategies for new democratic countries to consider when leveraging South Korea's democratic experience.

According to the Varieties of Democracy Institute (V-Dem), the fairness and freedom of South Korean elections have significantly improved since democratization. Figure 1 illustrates the changes in South Korea's election quality (blue, 'Election free and fair') and its Electoral Democracy Index (red, 'Electoral Democracy Index') between 1948 and 2020. For approximately 40 years following the Constituent Assembly election in 1948, both election quality and the democracy index showed little change. However, with the constitutional amendment for direct presidential elections in 1987, the fairness and freedom of elections increased substantially, and the Electoral Democracy Index also showed considerable improvement compared to the past.

<Figure 1> Changes in South Korea's Election Quality, 1948-2020

Factors that can influence election quality can be broadly categorized into structural, institutional, and actor dimensions. Structural factors include economic development, political and social cleavages, and geopolitical location. Institutional factors highlight the importance of the constitutional and legal framework supporting the separation of powers, as well as the role of an independent judiciary and electoral management bodies in overseeing and checking the electoral process. At the actor level, the capacity and strategic choices of political elites in the government and opposition parties, civil society, and the media affect election quality. Furthermore, the perceived quality of an election by voters can differ based on whether their supported party or candidate won or lost. South Korea achieved economic development while maintaining relatively low levels of inequality. Although political conflicts based on regionalism existed, there were no severe religious, ethnic, or cultural conflicts that could lead to violent confrontation or civil war among members of society. Moreover, during the transitions of power from the Kim Young-sam administration (conservative) to the Kim Dae-jung administration (progressive), from the Roh Moo-hyun administration (progressive) to the Lee Myung-bak administration (conservative), and from the Park Geun-hye administration (conservative) to the Moon Jae-in administration (progressive) after democratization, the opposition parties grew into forces capable of checking the government. This made government-led mobilization difficult, thereby contributing to improved election quality. During this process, a broad societal consensus was formed regarding the transfer of power through elections. Finally, the growth of electoral management capacity cannot be overlooked. Figure 2 shows South Korea's electoral management capacity. It can be observed that the improvements in election freedom and fairness align with the changes in the autonomy and capacity of the National Election Commission.

<Figure 2> Changes in the Autonomy and Capacity of South Korea's National Election Commission, 1948-2020

South Korea possesses fundamentally high state capacity, and its bureaucratic capacity is also among the world's best. In particular, the resident registration system has facilitated the identification and registration of eligible voters, forming a basis for effective and efficient election management, especially when compared to other countries that must identify and register voters for each election. This paper aims to analyze the capabilities of the South Korean National Election Commission (NEC) more specifically, focusing on its constitutional and legal status, organizational capacity, and the capabilities and motivations of its members.

I. Neutrality and Independence of the Election Commission

The electoral process "generally encompasses the entire election cycle, including the enactment of election laws, the delimitation of electoral districts, the determination of election schedules, the confirmation of eligible voters, party registration, candidate registration, the management of election campaigns, the provision of election information to voters, the management of election expenses and political funds, polling, vote counting and tabulation, the confirmation of election results, and the resolution of disputes" (Eom Seon-pil, 2015). Therefore, election management refers to the execution and supervision of the electoral process to ensure free and fair competitive elections. However, the extent to which an electoral management body manages different aspects of the electoral process varies by country. In South Korea, the NEC's responsibilities include compiling and supervising voter rolls, registering parties and candidates, managing campaigns, conducting polling and vote counting, and confirming election results. Conversely, election laws and the delimitation of electoral districts fall under the purview of the National Assembly, and election-related litigation is, in principle, under the judicial power of the courts.

Elections are a process by which the executive and legislative branches are reorganized according to the will of the people. Election management can influence the electoral process and its outcomes. If election management is influenced by partisan interests, it undermines confidence in its fairness. Therefore, election management must be conducted by an independent body free from partisan interests, including those of the executive branch, and this body must possess the administrative capacity to efficiently handle the extensive process from voter roll compilation to the confirmation of results.

The South Korean Constitution guarantees the neutrality and independence of the election commission, among other entities. Following the establishment of the Republic of Korea, election-related affairs were managed by an 'Election Committee' established within the executive branch. As a historical reflection on the fraudulent elections of March 15, 1960, the third constitutional amendment established the 'Central Election Management Commission' as a constitutional body independent of the government, judiciary, and National Assembly. Since then, with the exception of the 1972 constitution, subsequent constitutional amendments have consistently strengthened the independence and neutrality of the Central Election Management Commission. The 1960 third constitutional amendment only stipulated the composition of the Central Election Management Commission, delegating matters concerning its organization and authority to legislation. However, subsequent amendments included provisions on its authority, term of office, political neutrality, security of tenure, rule-making power, and relations with lower-level election commissions and administrative agencies. This was an effort to establish a substantial foundation for independence by embedding the basis for the election commission's activities in the constitution, moving beyond mere symbolic or declarative provisions on its neutrality and independence. This is because if the composition and operation of the election commission are left to the legislative level, its independence and neutrality could be influenced by changes in political forces resulting from election outcomes. The powers and duties of the South Korean NEC as stipulated in the current constitution are as follows:

Article 114

① An Election Management Commission shall be established to ensure the fair management of elections and national referendums, and to handle affairs related to political parties.

② The Central Election Management Commission shall be composed of three members appointed by the President, three members elected by the National Assembly, and three members nominated by the Chief Justice of the Supreme Court. The Chairperson shall be elected by mutual election from among the members.

③ The term of office for members shall be six years.

④ Members shall not join political parties or engage in political activities.

⑤ Members shall not be dismissed except through impeachment or a sentence of imprisonment without labor or heavier punishment.

⑥ The Central Election Management Commission may, within the scope of laws and regulations, establish rules concerning the management of elections and national referendums or affairs of political parties, and may establish rules concerning internal discipline within the scope not contrary to law.

⑦ The organization, scope of duties, and other necessary matters of the election management commissions at each level shall be determined by law.

Article 115

① The election management commissions at each level may issue necessary directives to the relevant administrative agencies concerning election affairs, such as the compilation of voter rolls, and national referendum affairs.

② The relevant administrative agencies that receive directives under paragraph ① shall comply therewith.

Article 116

① Election campaigns shall be conducted under the supervision of the election management commissions at each level, within the scope prescribed by law, and equal opportunities shall be guaranteed.

② Election expenses shall not be imposed on political parties or candidates, except as prescribed by law.

II. Organizational Capacity of the Election Commission

The South Korean National Election Commission (NEC) maintains personnel independence by independently managing the recruitment, promotion, appointment, and transfer of its staff. According to the 2020 Yearbook of Personnel Innovation Statistics, the NEC has an authorized strength of 2,867 and a current staff of 3,085. While this number is smaller compared to the executive branch (1,078,516) or the judiciary (17,751), it only reflects permanent employees. Table 1 compares the organizational size of electoral management bodies in various countries, as presented in the 'Electoral Learning and Capacity Training' data conducted by the Electoral Integrity Project in 2016. According to Table 1, Mexico has the largest number of permanent staff among the surveyed countries (approximately 15,000), followed by Iraq (approximately 4,000), Panama (approximately 3,000), and then South Korea. Examining the number of temporary staff hired during election periods, South Korea hires approximately 200,000 people during elections, ranking high after Afghanistan (which hires over 1 million), Thailand and Indonesia (approximately 550,000), Kenya (approximately 300,000), and Tanzania (approximately 250,000). Furthermore, South Korea appears to rely very little on unpaid volunteers.

<Table 1> Human Resources Scale of Election Management Commissions in Various Countries

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Interestingly, with the exception of South Korea, the countries ranking high in the number of permanent or temporary employees differ from each other. In Mexico, which employs the most permanent workers, the number of temporary employees is only about 65,000, while in Afghanistan, where the number of temporary employees is overwhelmingly high, the number of permanent employees is only 455. South Korea employs a relatively large number of temporary staff for managing elections for the executive and legislative branches, in addition to permanent staff for ongoing operations.

The institutional and organizational capabilities of the National Election Commission (NEC) of South Korea help it effectively perform its regular duties and election management tasks. In particular, since the consignment of election management for the Forest Cooperatives, National Agricultural Cooperatives Federation, National Livestock Cooperatives Federation, and National Fisheries Cooperatives Federation was legislated in 2005, the NEC has undertaken and managed various election tasks, including shareholder meetings of private companies, presidential elections of national universities, executive elections of Saemaul Undong Credit Cooperatives, and elections for apartment complex managers, in addition to public organizations. This has helped continuously strengthen its election management capabilities through 평시 (peongsi, peacetime) election management. Furthermore, the NEC introduced early voting in 2014, enhancing voting convenience by allowing voters to cast ballots anywhere in the country, regardless of their place of residence or electoral district. The NEC has also reduced the possibility of post-election disputes by conducting vote counting and announcement in a transparent and swift manner through the introduction of electronic vote counting. For instance, in South Korea, voting and vote counting for presidential and parliamentary elections are broadcast in real-time, and election results are announced within 10 hours.

Next, Table 2 shows the self-assessment by NEC members regarding the independence and professionalism of the election commissions. In terms of independence, the NEC of South Korea scored 100 points, along with Afghanistan and Costa Rica. However, in terms of professionalism, it scored 80 points, following Bhutan, Malawi, Mexico, and Peru. Compared to other election commissions, it can be seen that they positively evaluate their own capabilities. Of course, it is worth noting that in the cases of Canada and the Netherlands, known for their high election quality, independence and professionalism were relatively low, while in the cases of Mexico and Bhutan, where independence and professionalism scores were high, they received relatively low scores in election quality assessments. This difference may reflect that election management body staff in New Zealand and Canada apply stricter standards when evaluating their own independence and professionalism compared to staff in Mexico and Bhutan (Choi Jae-dong and Cho Jin-man 2020).

<Table 2> Evaluation of Independence and Professionalism of Election Commissions in Various Countries

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The positive self-assessment of the independence of the election commission reflects the historical experiences of the election commission. For example, in 1964, the year after the establishment of the Central Election Commission, President Park Chung-hee intended to visit the Central Election Commission during his annual tour of ministries, but Chairman Kwak Sang-wook of the Central Election Commission refused President Park Chung-hee's visit, stating that it was inappropriate for the head of the executive branch to visit a constitutional independent institution. In addition, in the 1988 by-election for the National Assembly in Donghae City, Chairman Lee Hoi-chang of the Central Election Commission prosecuted all five candidates and their campaign managers who were running in the election at the time, as part of a strong expression of his commitment to fair elections. This was the first case in the history of the election commission to prosecute candidates, and it served as an opportunity to re-attract media and public attention to the importance of fair election management. These experiences are good examples showing that not only the legal and institutional foundation of the election commission but also the active will of the members of the election commission are important in realizing the independence of the election commission.

III. Fair Elections

Public trust in political institutions reflects the public's assessment of whether these institutions are meeting their expectations. Trust in the election commission is the voters' subjective evaluation of the commission's activities. Therefore, trust in the election commission increases when the perception is formed that the commission contributes to improving the quality of elections. This trust can serve as a foundation for the election commission to effectively carry out its supervisory activities in the election process.

<Figure 3> Evaluation of the Fairness of the Korean Election Commission's Activities (%)

The evaluation of the Korean election commission by the Korean public is generally favorable. According to Jo Jin-man, Kim Yong-cheol, and Jo Young-ho (2015), trust in the election commission during the 2012 presidential election was 71.4%. Compared to the trust in the National Assembly (24%), political parties (26%), and the executive branch (46%) in the World Values Survey conducted around the same time, trust in the election commission is overwhelmingly high. Figure 3 shows voters' perceptions of the fairness of the monitoring and enforcement activities conducted by the Central Election Commission in elections. In the 17th presidential election held in 2007, 61% responded that the election commission's activities were fair. In the case of the 18th presidential election, despite the aftermath of the National Intelligence Service's manipulation of public opinion, about 52% evaluated the election commission's activities positively, and the 18th general election recorded similar figures. Subsequently, in the 19th presidential election held after the impeachment of President Park Geun-hye, 72% positively evaluated the election commission's activities, and in the 21st general election held last year, the proportion of positive evaluations rose to 76%.

IV. Restriction of Freedom

While the functions and roles of the election commission in creating fair elections are receiving positive evaluations, there are also concerns that the election commission excessively restricts the freedom of elections, particularly the freedom of campaigning. Article 58 of the Public Official Election Act defines campaigning as "acts to get elected, have someone elected, or prevent someone from being elected" and stipulates overall aspects of campaigning, such as the campaign period, campaign subjects, campaign methods, and review standards (Jo Young-seung 2018). In particular, the regulations on campaigning are complex and detailed, specifying the periods when campaigning is allowed and not allowed, who can and cannot campaign, and what types of campaigning are permitted and prohibited. However, with the advancement of information and communication technology and the increasing desire for political expression among voters, there is criticism that the regulation-centered election management, which mechanically applies the Public Official Election Act, suppresses freedom of expression. For example, ahead of the 2021 by-elections, the election commission ruled that an advertisement urging the unification of opposition candidates published in a daily newspaper by a general voter and a campaign titled "Why are we having a by-election?" by a women's group violated the Public Official Election Act. The current law prohibits acts of posting, distributing, or installing materials and printed matter that express support for, recommend, or oppose a particular party or candidate, or display the party name, candidate's name and photo, or anything that can be inferred from them, from 180 days before the election day until the election day; the newspaper advertisement and banner were found to have violated this. Furthermore, prior to the 20th general election in 2018, the election commission requested the deletion of 17,101 internet posts. A civic group that analyzed the reasons for deletion criticized that these crackdowns restricted voters' freedom of expression and infringed upon their right to know, as the targeted internet posts mainly contained posts that simply cited opinion poll results or criticized candidates, such as verifying candidates' qualifications.[1]

In response to these criticisms, the election commission stated that decisions regarding violations of election law were made to "ensure equal opportunities for campaigning among candidates and prevent the fairness of elections from being compromised by illegal acts."[2] This is consistent with the Constitutional Court's view, which has consistently ruled that the Public Official Election Act is generally constitutional, despite criticisms that it infringes upon the freedom of campaigning. As presented earlier, Article 116 (1) of the Constitution stipulates that equal opportunities must be guaranteed in election campaigning, and Article 1 of the Public Official Election Act stipulates that elections must be conducted fairly through the free will and democratic procedures of the people, and that irregularities related to elections must be prevented. This is not unrelated to the fact that the focus of election management has been placed on fairness, with fairness being prioritized over freedom, as the reflection on the 315 fraudulent election in the past led to the establishment of the election commission as an independent constitutional body. Each time a constitutional appeal regarding the Public Official Election Act has been filed, the Constitutional Court has ruled that restrictions on campaigning under the Public Official Election Act do not infringe upon the freedom of political expression when they are aimed at preventing socioeconomic losses due to overheated campaigning, preventing situations where equal opportunities for campaigning are not guaranteed due to disparities in the economic power of candidates, and preventing the fairness of elections from being undermined by vote-buying, smear campaigns, and violence (Kim Il-hwan & Hong Seok-hwan 2014).

However, as free and fair elections have become established since democratization, and as the election culture has improved and public political awareness has sufficiently increased, there is a growing consensus that regulation-centered election management based on excessively detailed provisions is failing to keep pace with the changing times. Reflecting this, in April, the election commission submitted a bill to the National Assembly to expand political expression by abolishing Articles 90 and 93 (1) of the Public Official Election Act, which comprehensively prohibit the posting, affixing, and distribution of facilities and printed materials that can influence elections from 180 days before the election day until the election day. In May, as a measure to expand the freedom of campaigning, a bill to amend the political relations law was submitted to the National Assembly, which includes extending the campaign period for preliminary candidates and allowing the establishment of 'district/city/county parties' to activate public participation in parties, while ensuring more transparent management of political funds to prevent the repetition of past abuses.

V. Support for Global Democracy

The Korean Election Commission has strived to enhance the overall election management capacity of new democracies and to spread the values and norms of democracy necessary for conducting free and fair elections by sharing its experiences and knowledge of Korean democracy. In particular, in 2014, it led the establishment of the Association of World Election Bodies (A-WEB) and established its headquarters in Songdo, Korea. As of 2021, 118 election management bodies from 108 countries worldwide participate in the association, and Korea, as the founding nation, provides various forms of support, including financial assistance, for the overall operation of the association. The association operates various programs to strengthen the election capacity of new democracies through international cooperation with international organizations and civic groups in the field of election management, such as the United Nations Development Program (UNDP), the International Institute for Democracy and Electoral Assistance (International IDEA), the National Democratic Institute, and the Korea International Cooperation Agency (KOICA). For example, the Election Management and Capacity Building Program focuses on fostering expertise to enable election officials to cope with problems that may arise during the election management process, and the Specialized Training Program on ICT aims to enhance understanding of how to utilize information and communication technology in election management systems and operations. Additionally, the Election Visitor Program provides election officials with opportunities to directly experience and observe the election management processes of other countries. These programs contribute to helping election officials from various countries understand different electoral systems and share and disseminate better election management techniques, thereby facilitating the exploration of election management systems tailored to each country's circumstances.

VI. Conclusion

This paper aimed to elucidate how the Korean Election Commission has contributed to improving the quality of Korean elections. The Korean Election Commission has had its independence and neutrality guaranteed by the Constitution and laws, based on a strong national capacity and bureaucracy. Furthermore, compared to election commissions in other countries, the Korean Election Commission is relatively well-equipped with the human and material resources necessary for election management. The members of the election commission have made various efforts to maintain the commission's independence and neutrality and to conduct fair elections amidst institutional changes, which has served as a foundation for the commission to maintain relatively high trust and receive positive evaluations for its activities compared to the National Assembly or the government. However, as Korean democracy has matured and the domestic political environment has changed, the demand for new roles for the election commission is increasing, and externally, there are growing calls for Korea to contribute to the promotion of global democracy based on its experience of democratic success. It is necessary to explore response strategies accordingly.

First, a legal and institutional framework must be established to guarantee the freedom of campaigning, moving away from regulation-centered election management. In the process of establishing procedural democracy after democratization, the Public Official Election Act and the activities of the election commission based on it prioritized ensuring the fairness of the election process due to concerns about government-controlled and money-driven election interference. However, as society has become more pluralistic, citizens' desire for political participation has increased, and with the development of information and communication technology, various forms of campaigning have emerged that are difficult to clearly distinguish as permitted or restricted by the existing Public Official Election Act. As a result, the effectiveness of the 'positive' system of campaign regulation, which allows campaigning only in ways prescribed by law, is diminishing. In the future, the focus should be on shifting to a 'negative' system of election management, which specifies prohibited activities during campaigning while broadly allowing activities that do not violate the law, thereby creating an environment where political parties and candidates can satisfy voters' right to know through free campaign activities, and voters can freely express their opinions. Furthermore, it is necessary to enhance the transparency of political funds by continuously disclosing income and expenditure statements of political funds to promote the public's right to know and right to participate in politics.

Second, democratic civic education must be strengthened. The quality of elections and democracy is closely related to civic culture. When voters cultivate the consciousness and capabilities of democratic citizens and civic culture takes root throughout society, the quality of elections and democracy can also be improved. Germany before World War II was considered one of the countries with the deepest-rooted authoritarian culture. However, subsequent constitutional and educational reforms led to research indicating that German civic culture began to surpass that of the United States by the 1970s. This is a good example showing that civic culture can be formed and the quality of democracy improved through democratic civic education. While Korean voters' civic consciousness and Korean civic culture have improved remarkably compared to the past, research and education on democratic civic education, including media literacy and political literacy, are needed to effectively cope with the flood of fake news and political polarization that Korean democracy is newly facing. Furthermore, these experiences can be valuable assets that Korean democracy can share with new democracies. In the case of new democracies, conflicts between tribes and religions often manifest in the form of violence rather than voting. Therefore, it is necessary to improve civic consciousness through democratic civic education that cultivates a basic understanding of the value of elections and voting, and dialogue and compromise. To date, educational programs for emerging democracies have been conducted for election officials, but the target audience should be expanded to the general public in the future.

Third, more research is needed on the experiences and achievements of Korean democracy. While research in specific areas such as election law, political party law, and election management has been relatively actively accumulated in Korea, research from a comprehensive, political, and empirical perspective on election governance remains insufficient. This requires the support and assistance of various institutions, including academia, the election commission, and research foundations and think tanks. In particular, a system for efficiently managing and sharing statistical data for empirical analysis of Korean democracy must be established. Currently, data related to National Assembly members and the legislative process are produced by the National Assembly, and data related to the election process and results are produced by the election commission; however, a system for systematically managing, disclosing, and communicating this data has not been established. This is a common problem in the data construction for the overseas aid of Korean democracy. Since the enactment of the Data Three Acts in August 2020, research utilizing administrative information processed through de-identification has been actively conducted in areas such as health, medical care, and finance. Consideration needs to be given to how these developments can be applied to the fields of elections and politics.

Fourth, a legal foundation and financial support are needed to establish a system that can continuously contribute to the development of global democracy based on Korea's democratic experience. Korea is contributing to global democratic governance through various programs and projects. However, the current projects are limited in that they are conducted individually and fragmentedly by different entities. Establishing a legal basis for democracy assistance can contribute to planning and executing projects from a more systematic and long-term perspective. Furthermore, as evidenced by the recent case where the reduction of the budget for the Association of World Election Bodies led to the contraction of its educational programs, stable funding is essential for carrying out continuous support projects.

Fifth, it is necessary to build networks and expand partnerships with third-party international organizations, internationally active NGOs, and civil societies in recipient countries. Election management is closely related to the political situation of each country, and efforts to build democratic governance often require legal and institutional reforms in that country. Therefore, there are limitations to the Korean government or foreign governments taking the lead in support projects. Cooperation with international organizations and NGOs is necessary for effective support projects and program operations. In particular, linkage with local civil societies, which can become partners in support projects, is essential. In the case of new democracies, as the capacity of civil society is also limited, support should be provided to enable civil societies in recipient countries to discover and publicize various issues of democratic governance. ■

References

Kim Il-hwan & Hong Seok-hwan. 2014. “A Comparative Legal Study on Election Campaign Regulations.” American Constitutional Law Review 25(1). 31-63.

Eum Seon-pil. 2015. “The Constitutional Status and Role of the Election Commission.” Hongik Law Review. 16(1). 219-249.

Jo Young-seung. 2018. “A Study on the System of Guaranteeing Freedom of Election Campaigning – Focusing on Constitutional Basis and Protection Scope.” Public Law Studies. 19(2). 155-183.

Jo Jin-man, Kim Yong-cheol, & Jo Young-ho. 2015. “Evaluation of Election Quality and Trust in the Election Commission.” Legislative Research 21(1). 165-196

Choi Jae-dong & Jo Jin-man. 2020. “Election Commission System, Organization, and Election Quality: An Empirical Analysis Using ELECT Data. Legislative Studies. 15(2): 145-170.

Dahl, Robert A. 1998. On Democracy. New Haven & London: Yale University Press.

[1] People's Solidarity for Participatory Democracy. https://www.peoplepower21.org/Politics/1451265(Accessed: 2021/9/7)

[2] National Election Commission https://m.nec.go.kr/site/nec/ex/bbs/View.do?cbIdx=1090&bcIdx=144141 (Retrieved: 2021/9/7)

■ Author: Kang Woo-chang_ Professor of Political Science and International Relations, Korea University. He received his Ph.D. in Political Science from New York University and served as a postdoctoral researcher at the East Asian Studies Program at Yale University. His main research areas include comparative politics, elections, and political behavior. Recent publications include "Envy and Pride: How Economic Inequality Deepens Happiness Inequality in South Korea" (2020, co-authored), "The Liberals Should Pray for Rain: Weather, Opportunity Costs of Voting and Electoral Outcomes in South Korea" (2019), and "The Corruption Scandal and Voter Realignments in the 19th Presidential Election in South Korea" (2019, co-authored).

■ Contact and Editing: Yoon Ha-eun EAI Research Fellow

    Inquiries: 02 2277 1683 (ext. 208) | hyoon@eai.or.kr