U-I-32/15

Reference no.:
U-I-32/15
Objavljeno:
Official Gazette RS, No. 82/2018 and OdlUS XXIII, 12 | 08.11.2018
ECLI:
ECLI:SI:USRS:2018:U.I.32.15
Act:
National Assembly Elections Act (Official Gazette RS, Nos. 109/06 – official consolidated text, and 23/17) (NAEA),
Art. 7.1, Art. 42, Art. 43, Art. 44, and Art. 91.2
Act Establishing Constituencies for the Election of Deputies to the National Assembly (Official Gazette RS, Nos. 24/05 – official consolidated text) (AECEDNA), Art. 4
Constitution (CRS), Art. 80.5
Operative provisions:
The second paragraph of Article 91 of the National Assembly Elections Act (Official Gazette RS, Nos. 109/06 – official consolidated text, and 23/17) is not inconsistent with the Constitution.
 
The first paragraph of Article 7 and Articles 42, 43, and 44 of the National Assembly Elections Act are not inconsistent with the Constitution.
 
Article 4 of the Act Establishing Constituencies for the Election of Deputies to the National Assembly (Official Gazette RS, Nos. 24/05 – official consolidated text) is inconsistent with the Constitution.
 
The National Assembly must remedy the unconstitutionality established in the preceding Point within two years of the publication of this Decision in the Official Gazette of the Republic of Slovenia.
 
The request for a review of the constitutionality of the fifth paragraph of Article 80 of the Constitution is rejected.
Abstract:
[Publisher's Note: The text published below is a summary prepared for the annual report.]
 
Elections to the National Assembly
 
By Decision No. U-I-32/15, dated 8 November 2018 (Official Gazette RS, No. 82/18), upon a request of the National Council, the Constitutional Court reviewed the conformity of the National Assembly Elections Act (the NAEA) and the Act Establishing Constituencies for the Election of Deputies to the National Assembly (the AECEDNA) with the Constitution.
 
When assessing whether the electoral system guarantees voters decisive influence on the allocation of seats to candidates, the Constitutional Court proceeded from the fifth paragraph of Article 80 of the Constitution, which determines three fundamental elements of the electoral system: deputies (except for the deputies of the national communities) are elected (1) according to the principle of proportional representation (2) with a four-percent threshold [per list of candidates] required for election to the National Assembly, (3) with due consideration that voters have a decisive influence on the allocation of seats to the candidates. The constitutional requirement that the voters have a decisive influence on the allocation of seats means that it is the voters who “cause” the allocation of seats to individual candidates on different lists of candidates. Therefore, voters must be enabled to vote for individual candidates. However, the constitutional requirement that voters have a decisive influence is not an element of the right to vote as a human right (Article 43 of the Constitution), but an objective and collective element of the electoral system. Therefore, in the relation between the principle of proportionality and the decisive influence of voters there is not an opposition (a conflict), which occurs when two human rights of equal rank clash, where in accordance with the principle of proportionality the highest possible degree of the realisation of both is required (i.e. a so-called practical concordance). Since the Constitution does not determine the type of voting for candidates (e.g. preferential voting, panachage, ranking within a system involving a single transferable vote), the choice thereof is a matter of statutory regulation, which, however, has to be appropriate. Hence, it falls within the legislature’s discretion. 
 
The Constitutional Court held that the challenged rule in accordance with which deputies’ seats are allocated within a list of candidates having the same name to individual persons according to their relative success in an electoral district compared to the candidates of a list of candidates having the same name in other electoral districts excludes the possibility that seats are allocated according to the order as determined by the proposer of the list at the level of the constituency. Thereby, the decisive influence of voters on the allocation of seats is ensured. Therefore, the second paragraph of Article 91 of the NAEA is not inconsistent with the fifth paragraph of Article 80 of the Constitution.
 
The Constitutional Court also established that 26 years after the adoption of the electoral legislation the areas of the electoral districts no longer correspond to the criteria for the formation thereof determined by Article 20 of the NAEA (i.e. an equal number of inhabitants, geographical completeness, and the highest possible integrity of municipalities). Namely, the difference in the size of the biggest electoral district to the smallest electoral district has a ratio of 1:3.73. Furthermore, the territories of the electoral districts are not harmonised with the borders of the new municipalities and no longer fulfil the requirement of geographical completeness. Therefore, the Constitutional Court held that Article 4 of the AECEDNA, which determines the territories of electoral districts, is inconsistent with all of the criteria determined by Article 20 of the NAEA. The inconsistency of the laws is such that the principles of a state governed by the rule of law determined by Article 2 of the Constitution are violated.
 
The Constitutional Court adopted a declaratory decision. The abrogation of Article 4 of the AECEDNA would namely entail that the territories of the electoral districts are not determined. Such would render the holding of elections impossible. The abrogation of the regulation on electoral districts could thus result in the emergence of an unconstitutional legal gap from the viewpoint of the fundamental constitutional principles of democracy determined by Article 1 of the Constitution and of the principle that citizens exercise power through elections, as stipulated by the second sentence of the second paragraph of Article 3 of the Constitution. The Constitutional Court imposed on the legislature a two-year time limit to eliminate the established unconstitutionality, taking into consideration that modification of the fundamental elements of the electoral system as a general rule entails the complex and internally intertwined regulation of individual issues for the enactment of which the legislature must have at its disposal an adequately greater amount of time than the Constitutional Court usually grants thereto in order to respond to an established unconstitutionality.
Password:
1.2.51.3.3 - Constitutional Justice - Types of claim - Capacity to file a petition with the Constitutional Court - Filer of a request - National Council.
1.5.51.1.13 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Finding that a regulation is in conformity.
1.5.51.1.15.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Finding that a regulation is not in conformity - With the Constitution.
1.5.51.1.16 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Call to the norm-giver to adjust a regulation with the Constitution.
1.5.51.1.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Rejection of a request.
3.9 - General Principles - Rule of law.
1.5.51.1.27.6 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Lack of jurisdiction for review - Of norms of constitutional level.
5.3.38 - Fundamental Rights - Civil and political rights - Electoral rights.
5.2 - Fundamental Rights - Equality.
3.16 - General Principles - Proportionality.
1.5.5.1 - Constitutional Justice - Decisions - Individual opinions of members - Concurring opinions.
1.5.5.2 - Constitutional Justice - Decisions - Individual opinions of members - Dissenting opinions.
Legal basis:
Arts. 2, 14.2, 80.5, 160, Constitution [CRS]
Arts. 21, 25.1, 48, Constitutional Court Act [CCA]
Note:
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Document in PDF:
The full text:
U-I-32/15
8 November 2018
 
 
 
DECISION
 
In proceedings to review constitutionality initiated upon the request of the National Council, following a public hearing held on 7 November 2017, at a session held on 8 November 2018, the Constitutional Court
 
 
decided as follows
 
1. The second paragraph of Article 91 of the National Assembly Elections Act (Official Gazette RS, Nos. 109/06 – official consolidated text, and 23/17) is not inconsistent with the Constitution.
 
2. The first paragraph of Article 7 and Articles 42, 43, and 44 of the National Assembly Elections Act are not inconsistent with the Constitution.
 
3. Article 4 of the Act Establishing Constituencies for the Election of Deputies to the National Assembly (Official Gazette RS, Nos. 24/05 – official consolidated text) is inconsistent with the Constitution.
 
4. The National Assembly must remedy the unconstitutionality established in the preceding Point within two years of the publication of this Decision in the Official Gazette of the Republic of Slovenia.
 
5. The request for a review of the constitutionality of the fifth paragraph of Article 80 of the Constitution is rejected.
 
 
REASONING
 
A
 
1. The applicant challenges Article 4 of the Act Establishing Constituencies for the Election of Deputies to the National Assembly (hereinafter AECEDNA), which determines the territories of the eight constituencies and the 88 electoral districts. It states that an analysis of the results of the National Assembly elections in 2014 showed that the number of eligible voters differed greatly among electoral districts (the ratio between the lowest and the highest number reaching 1:3.73). As a result, the challenged provision is allegedly inconsistent with Articles 1, 2, and 20 of the National Assembly Elections Act (hereinafter referred to as the NAEA), and especially with the second paragraph of Article 20 of the NAEA, which requires that constituencies be formed in such a manner that the principle that each deputy is elected per an approximately equal number of inhabitants is observed. As Article 4 of the AECEDNA allegedly allows for such great differences in the number of eligible voters per elected deputy, it is allegedly also inconsistent with Articles 3, 43, 44, 80, and 82 of the Constitution.
 
2. The applicant also challenges Article 7 of the NAEA, which determines that the right to vote and to stand for election as a deputy is held by citizens of the Republic of Slovenia who have reached the age of 18 by [the Slovene preposition used here, i.e. “na”, can be understood to mean both “on” or “by”; the applicant appears to believe that it means “on”] the day of the election. It allegedly follows from this provision that the right to vote and to stand for election as a deputy is only held by those citizens of the Republic of Slovenia whose 18th birthday is on the day of the election, i.e. who come of age on that day. As a result, this provision is allegedly inconsistent with Articles 3, 43, and 44 of the Constitution.
 
3. In the applicant’s opinion, Articles 42, 43, and 44 of the NAEA, which determine the rules for candidacies endorsed by political parties and those endorsed by voters, are also unconstitutional. The applicant alleges their inconsistency with Articles 3 and 82 of the Constitution, because they determine disproportionately different conditions for the candidacies of independent candidates in comparison to the conditions for the candidacies of candidates who enjoy the support of deputies of a parliamentary political party. It claims that a deputy’s signature caries 333-times more weight than the signature of an ordinary citizen, which is allegedly unconstitutional.
 
4. The applicant further challenges Articles 90, 91, 92, and 93 of the NAEA, which determine the rules for establishing the results of an election and the allocation of seats. It alleges their inconsistency with Articles 3, 80, and 82 of the Constitution. It states that the challenged regulation fails to satisfy the constitutional requirement that voters shall have a decisive influence on the allocation of seats to the candidates (the fifth paragraph of Article 80 of the Constitution). It opines that in order to ensure the “proportional representation” of the electorate, every electoral district should have an elected deputy. It alleges that the realisation of Articles 3, 80, and 82 of the Constitution is ensured only if the election results guarantee an equal distribution of deputies across the electorate. However, the analysis of the results of the National Assembly elections in 2014 allegedly showed that 21 out of the 88 electoral districts did not have an elected deputy, which allegedly entails that a quarter of Slovene voters do not have a representative in the National Assembly.
 
5. At the public hearing, the applicant stressed that according to the Constitution state power is vested in the people, that the deputies are representatives of all the people, and that the voters must have a decisive influence on the choice of candidates. On the contrary, the electoral legislation in force allegedly enables and even encourages the notion that political parties are the bearers of state power, that the deputies are representatives of political parties, and that a decisive influence on the choice of candidates lies with the political parties instead of the voters. The applicant drew attention to the analysis of the results of the National Assembly elections in 2014, which allegedly showed that of the deputies who were elected in their electoral districts one half had not been positioned in the first place on their lists, but in the second to seventh places, and that no deputy was elected in 21 electoral districts. It proposed that the Constitutional Court also review the constitutionality of the fifth paragraph of Article 80 of the Constitution, as it allegedly circumvented the will of the people as expressed in a referendum and enshrined the predominance of political parties at the constitutional level, thereby limiting the ability of the people to actually exercise power.
 
6. The Constitutional Court sent the request to the National Assembly for a reply. The National Assembly refers to Constitutional Court Orders No. U-I-128/92, dated 27 October 1992 (Official Gazette RS, No. 53/92, and OdlUS I, 75), No. U-I-226/00, dated 10 April 2003 (OdlUS XII, 35), and No. U-I-346/05, dated 4 October 2007, and claims that the Constitutional Court already decided on allegations with essentially the same substance regarding the unconstitutionality of Article 4 of the AECEDNA and held that they were unsubstantiated. With regard to Article 7 of the NAEA, it states that the restrictive linguistic interpretation offered by the applicant is contrary to all other interpretations of this provision, especially the teleological, logical, and systemic interpretations thereof, and it is particularly also manifestly unconstitutional. It likewise claims that the allegations of the unconstitutionality of the determination of the conditions for candidacies and the regulation of the allocation of seats are unsubstantiated, referring to existing constitutional case law regarding these issues (Constitutional Court Decision No. U-I-336/96, dated 4 March 1999, Official Gazette RS, No. 22/99, and OdlUS VIII, 43, and Constitutional Court Orders No. U-I-226/00 and No. U-I-346/05). It draws attention to the Constitutional Act Amending Article 80 of the Constitution of the Republic of Slovenia (Official Gazette RS, No. 66/2000 – hereinafter referred to as the CA80), which explicitly excluded the application of the so-called national lists that were in force at the time in the allocation of seats, as they were contrary to the requirement of ensuring a decisive influence of voters on the allocation of seats to the candidates.
 
7. At the public hearing, the National Assembly stood by the arguments put forth in its written reply to the request of the National Council. Primarily it proposed that the Constitutional Court reject the request in accordance with the second paragraph of Article 23a of the Constitutional Court Act (Official Gazette RS, Nos. 64/07 – official consolidated text and 109/12 – hereinafter referred to as the CCA), as the procedural requirements for a substantive review of the constitutionality of the challenged acts before the Constitutional Court are not fulfilled. It claimed that the National Council failed to exhaust all means to amend the provisions of the AECEDNA and the NAEA, which it considers to be unconstitutional (i.e. legislative initiative, suspensive veto). As a secondary option, the National Assembly again referred to the constitutional case law regarding the challenged provisions, which it believes has already become settled. It stressed that in its request for a review of the constitutionality of the challenged statutory regulation the National Council did not provide any new constitutional law arguments that would call for a different decision by the Constitutional Court, and that such concerns a typical political question. It denied the allegations regarding the inactivity of the National Assembly as regards changes to the electoral system.
 
8. On 20 November 2017, the National Assembly submitted an additional reply to the Constitutional Court presenting its position regarding the supplement, by which the National Council extended its request to also include a review of the constitutionality of the fifth paragraph of Article 80 of the Constitution, as it allegedly did not correspond to the will of the people as expressed in the referendum on the electoral system. Referring to constitutional case law (Constitutional Court Orders No. U-I-214/00, dated 14 September 2000, OdlUS IX, 201, and No. U-I-262/00, dated 13 March 2003), it proposed that the request be rejected insofar as the Constitutional Court lacks jurisdiction to review the Constitution or provisions of a constitutional character as well as to review the mutual consistency of constitutional provisions.
 
9. The Government submitted an opinion regarding the statements contained in the request. Relying on existing constitutional case law (Constitutional Court Decision No. U-I-354/96, dated 9 March 2000, Official Gazette RS, No. 31/2000, and OdlUS IX, 53, and Constitutional Court Order No. U-I-226/00), it states that Article 4 of the AECEDNA is not inconsistent with the principle of equal suffrage, as the different sizes of the electoral districts (even at a ratio of 1:3) do not violate equal suffrage, because the election results of the lists of candidates are calculated at the level of constituencies, among which differences in size are minimal. Likewise it is allegedly not inconsistent with Article 80 of the Constitution, as the electoral system (especially following the last amendment of the NAEA, which abolished the so-called national lists) allegedly ensures the election of those candidates who have obtained the greatest support of the voters. The Government stresses that it is practically impossible to find an ideal manner that would satisfy the objective of ensuring a decisive influence of voters on the allocation of seats to the candidates (the fifth paragraph of Article 80 of the Constitution) completely or to a greater extent. It states that it clearly follows from the first paragraph of Article 7 of the NAEA that the active right to vote and the passive right to vote are held by those citizens who have reached the age of 18 years before an election or on the day of the election. The provision (i.e. the first paragraph, which refers to the condition of 18 years of age) has been in force without amendment since 1992 and has also been adequately applied at elections throughout this period. In the opinion of the Government, Articles 42, 43, and 44 of the NAEA are also not inconsistent with the Constitution. The Government believes that the principle of equal suffrage does not encompass the requirement that all signatures in support of a candidacy carry equal weight, and that the different weight of the signatures in support of a candidacy provided by deputies and those provided by voters also does not entail inadmissible discrimination between these two groups of persons. In this regard, it draws attention to the position expressed in Constitutional Court Decision No. U-I-336/96.
 
10. At the public hearing, the Government also stood by the arguments put forth in its written opinion and again highlighted that the electoral system entails an adequate implementation of the constitutional principles referred to in Article 80 of the Constitution, as the electoral system ensures the election of those candidates who have obtained the greatest support of the voters. In the opinion of the Government, the review of constitutionality should above all take into consideration the fact that the CA80 from 2000 precisely determined the substantive changes to the electoral system that were transposed into electoral legislation in 2006 by the Act Amending the National Assembly Elections Act (Official Gazette RS, No. 78/06 – hereinafter referred to as the NAEA-B). The CA80 did not determine any further changes to the electoral system, which can be understood as entailing that they are not necessary. The Government also stressed that it had already suggested amendments to the electoral legislation in the past, namely in the quest for more appropriate implementation of the constitutional provision that refers to the personalisation of elections or ensuring a decisive influence of voters on the allocation of seats to the candidates. A draft that determined the introduction of an absolute preferential vote allegedly failed to gain sufficient support in the National Assembly. However, in the opinion of the Government, such does not entail that the regulation in force is unconstitutional.
 
11. The Constitutional Court sent the reply of the National Assembly and the opinion of the Government to the applicant, who did not reply thereto.
 
12. The Constitutional Court requested information on the number of citizens of the Republic of Slovenia with permanent residence in the different electoral districts on 31 December 2011, 31 December 2013, and 31 December 2014 from the Ministry of the Interior (hereinafter referred to as the MI). The MI clarified that it did not possess such information; it did, however, possess information on the number of citizens of the Republic of Slovenia who are voters by electoral district that were applied in the establishment of the electoral registers for the National Assembly elections in 2011 and 2014.
 
Public Hearing
 
13. On 7 November 2017 the Constitutional Court held a public hearing (Article 35 of the CCA). In addition to the applicant and the opposing party, it also invited other persons whose attendance at the public hearing it deemed to be necessary, i.e. representatives of the Government and the National Electoral Commission (hereinafter referred to as the NEC), and Prof. Dr Franc Grad, Prof. Dr Saša Zagorc, Prof. Dr Jurij Toplak, and Prof. Dr Tone Jerovšek, legal scholars from the field of electoral law (the first paragraph of Article 36 in conjunction with the second paragraph of Article 28 of the CCA). All invited persons attended the public hearing, with the exception of Prof. Dr Tone Jerovšek, who justified his absence. His non-attendance did not prevent the Constitutional Court from carrying out the proceedings and deciding on the case (the second paragraph of Article 36 of the CCA).
 
14. Prof. Dr Grad outlined the historical circumstances of the drafting of the electoral legislation. He explained that in 1992 a group of experts, of which he was a member, received the starting points for the preparation of the electoral legislation, i.e. that the electoral system should be proportional, that it should ensure the influence of voters on the selection of candidates, and that it should ensure stability. These three requirements were allegedly in conflict and could not all be realised to an equal extent; the challenged regulation was allegedly an attempt to reconcile them. The most sensitive was allegedly the issue of ensuring the influence of voters on the selection of candidates, which included a number of options. The expert group opted for a system wherein constituencies are divided into electoral districts, which are solely intended to show how much support candidates from different lists of candidates enjoy among voters. Such support was to be decisive in the allocation of seats, which are firstly allocated to lists on the level of the constituencies, and secondly at the level of the state as a whole. Prof. Dr Franc Grad explained that since the outset there has existed incomprehension of the fact that voting at the level of electoral districts does not entail the election [of deputies]. He stressed that under the electoral system in force no one is elected in an electoral district, as the votes cast in an electoral district are merely a criterion for the allocation of seats to individuals. Election in an electoral district would entail a majoritarian electoral system, which would be directly contrary to the fact that the Constitution requires a proportional electoral system. Prof. Dr Franc Grad clarified that the constitutional amendments of 2001 constitutionalised the three above-mentioned requirements, which would allow for the conclusion that both the electoral system in force before the constitutional amendments and the electoral system that was adopted pursuant to such and which is currently in force are consistent with the Constitution. With regard to the review of constitutionality at hand, he believes that it is even more important that Section II of the CA80 determined the manner of implementation of Section I of the constitutional amendment, which was subsequently incorporated into the NAEA. This is important, as the CA80 did not determine that the electoral legislation has to be harmonised with the constitutional amendment within a certain period of time, which is the usual practice, but simply enacted the amendment in its Section II, as should have been done by a law. It merely determined that the regulation under Section II of the CA80 shall remain in force until the electoral legislation is amended. All of the above allegedly entails at the least that Section II of the CA80 is consistent with the Constitution. Prof. Dr Franc Grad further explained that in his opinion both elements determined by the fifth paragraph of Article 80 of the Constitution (i.e. a proportional electoral system and a decisive influence of voters on the allocation of seats) are equally important and that the electoral system in force entails one of the possible combinations thereof, which, however, he does not claim to be the best possible constitutionally consistent regulation. However, in his opinion, such does not entail that it is not consistent with the Constitution. He expressed the position that the challenged regulation satisfies the constitutional requirement that voters have a decisive influence on the allocation of seats, and explained that a decisive influence of voters can only be consistently taken into account in a majoritarian electoral system or in a system with a single transferable vote, which is a proportional electoral system, as otherwise only a relative influence of voters may be taken into account. He clarified that the word decisive is an open-textured legal term, the content of which has already been determined by existing regulation, and the Constitutional Court will have to decide whether the content determined in such manner is consistent with the Constitution. In his opinion, the choice of electoral system is a typical political question and the review of the Constitutional Court should thus be as restrained as possible. With regard to the size of the electoral districts, he highlighted that from the perspective of carrying out an electoral campaign it is desirable that they are as equal as possible as regards the number of voters; however, such is not directly connected to the election of candidates. As seats are allocated at the level of constituencies, the principle of equal suffrage is also expressed at the level of constituencies (and at the level of the state as a whole); from the perspective of the principle of equal suffrage, the size of the electoral districts is allegedly completely irrelevant.
 
15. Prof. Dr Saša Zagorc clarified that the amendment of the fifth paragraph of Article 80 of the Constitution was the result of conciliation and a quest for a political compromise, whereby even at that time there were clashes of opinions as to whether the changes to the electoral system sufficiently satisfied the requirement that voters have a decisive influence. In his opinion, it would be premature to conclude that the statutory regulation in force is consistent with the fifth paragraph of Article 80 of the Constitution merely due to the fact that it is a copy of the regulation under Section II of the CA80. Even provided that the regulation under Section II of the CA80 had been consistent with the Constitution in 2000, as a result of dynamic interpretation it is not necessarily true that such is still the case today. He stressed that, in his opinion, the requirement that voters have a decisive influence is not a reflection of the principle of equal suffrage, but a component of the electoral system, which is the basis for deciding which candidate from which electoral district has been elected in a constituency. Therefore, the regulation of electoral districts in force cannot be considered inconsistent with the principle of the equal (active) right to vote; from a voter’s perspective, the active right to vote is allegedly tied to a constituency, within which the votes of all voters should have the same weight. Prof. Dr Saša Zagorc explained that he understands the requirement that voters have a decisive influence as the requirement that the electorate as a whole has a decisive influence and not that an individual voter does. In his opinion, the elements referred to in the fifth paragraph of Article 80 of the Constitution (i.e. a proportional electoral system and a decisive influence of voters) are not equally important, as the requirement that voters have a decisive influence – which [in the original text] is contained in a subordinate clause introduced by a locative pronoun – carries less weight. The choice of an electoral system that satisfies this requirement is allegedly a political question, which the Constitutional Court should review with restraint. He explained that the statutory regulation in force defines the decisive influence of voters, although in a minimal manner. As a result, in his opinion, the regulation in force is not inconsistent with the Constitution, and the decisive influence of voters on the allocation of seats could be reinforced by political means.
 
16. Prof. Dr Jurij Toplak explained that, as regards the size of the electoral districts and the number of voters per district, scholars in the field of electoral law around the world are unanimous that equal suffrage is violated if with his or her vote one voter can improve the result of a candidate by one per mille, while another voter can improve it by three per mille, and such is the difference that has been observed in the Republic of Slovenia. There allegedly also exists inequality among candidates (the passive right to vote), as two candidates from the same political party fighting for the same seat allegedly have different opportunities to address voters during the campaign period. He drew attention to the Judgment of the Supreme Court of the USA in Baker v. Carr, dated 26 March 1962, by which the Court changed its position in the Judgment in Colegrove v. Green, dated 10 June 1946, according to which the establishment of electoral districts entailed a political question. In connection with the decisive influence of voters on the allocation of seats, Prof. Dr Jurij Toplak stated that the intent of the framer of the constitutional amendment of 2000 is of decisive importance for the review of the constitutionality of the statutory regulation from the perspective of this constitutional requirement. It allegedly follows from the legislative materials of the Constitutional Commission regarding the constitutional amendment that the current electoral system gives voters an influence that is not decisive. In the opinion of Prof. Dr Jurij Toplak, Section II of the CA80 from 2000, which enacted the current electoral system, is not inconsistent with the Constitution, as it is on the same level as the Constitution. It is allegedly not essential whether the elements referred to in the first paragraph of Article 80 of the Constitution (i.e. a proportional electoral system and a decisive influence of voters) are equally important, but whether they are mutually exclusive. In his opinion, they are not, and thus they can both be observed. Allegedly, such systems are in place in one half of European states (e.g. Latvia), which have open list systems that allow a voter to first choose a party and then also a candidate from this party. Prof. Dr Jurij Toplak expressed the position that the electoral system in force only satisfies the criterion of proportional representation, but it does not give voters the possibility to choose within a party, but forces upon them a preferential vote. If voters do not have the possibility to choose among a party’s candidates, he alleges that we can hardly speak of a decisive influence of voters on the selection of candidates. Prof. Dr Jurij Toplak further drew attention to the fact that there exist many systems that give voters a decisive influence on the allocation of seats and that enable the establishment of electoral districts in such a manner that the weight of the votes of voters from different districts is the same.
 
17. The representatives of the NEC stressed that the NEC cannot discuss whether the regulation of the electoral system currently in force should be amended or improved, as it is only charged with ensuring its lawful exercise. In the opinion of the Director of the NEC, it cannot be said that voters have no influence on elections in the system in force; however, such influence is small. He drew attention to the fact that a voter may not choose among the candidates of a political party. These are determined by political parties, within which fierce battles are allegedly fought over which candidate will stand for election in which electoral district. In the opinion of the Director of the NEC, candidates from different political parties in a constituency do not compete against each other, but against candidates from their own (i.e. the same) political party.
 
18. On 21 November 2018 the NEC submitted to the Constitutional Court the information that the Director of the NEC had been asked to provide at the public hearing, i.e. information on the number of eligible voters according to electoral district and an analysis of the allocation of seats broken down by electoral district at the National Assembly elections in 2011 and in 2014 as well as a table with concrete data on the allocation of seats to the individual lists of candidates.
 
19. The Constitutional Court sent the information provided by the NEC to the National Council and the National Assembly, who did not submit their positions regarding such.
 
 
 B – I
 
20. In its reply, the National Assembly claims that the procedural requirements for a substantive review of the constitutionality of the challenged laws before the Constitutional Court are not fulfilled as the National Council failed to exhaust all options to amend the provisions of the AECEDNA and the NAEA, which it considers to be unconstitutional (i.e. legislative initiative, suspensive veto). It thus proposed that the Constitutional Court reject the request in accordance with the second paragraph of Article 23a of the CCA.
 
21. In accordance with the first sentence of the second paragraph of Article 162 of the Constitution, the law determines who may lodge a request for the initiation of proceedings before the Constitutional Court. In accordance with the third indent of the first paragraph of Article 23a of the CCA, a request for a review of constitutionality may be lodged by the National Council. In the second paragraph of Article 23a of the CCA, the legislature determined a restriction on lodging a request. According to such, applicants may not lodge a request for a review of the constitutionality or legality of regulations that they themselves adopted. From this provision it follows, inter alia, that the National Assembly as the legislative body may not lodge a request for a review of the constitutionality of a law. The restriction determined by the second paragraph of Article 23a of the CCA is grounded in the position that by exercising its basic competence the drafter of a norm can by itself ensure that the Constitution is observed by amending or supplementing at any given time a regulation it deems to be inconsistent with the Constitution or a law.[1], [2]
 
22. The competences of the National Council are defined by Article 97 of the Constitution. The first paragraph of Article 97 of the Constitution determines that the National Council may propose that the National Assembly adopt laws, convey to the National Assembly its opinion on all matters within the competence of the National Assembly, require the National Assembly to decide again on a given law prior to its promulgation, and require inquiries on matters of public importance as referred to in Article 93 of the Constitution. In accordance with the second paragraph of Article 97 of the Constitution, where required by the National Assembly, the National Council must express its opinion on an individual matter.
 
23. According to the Constitution, the National Council may only perform initiative, suspensive, and advisory roles in relation to the National Assembly when the latter exercises its constitutionally determined legislative competences. However, the National Council may not (independently) adopt laws, as according to the Constitution this competence is vested exclusively in the National Assembly as the bearer of legislative power. In light of the above, the National Council cannot be denied the power to submit a request for a review of the constitutionality of laws adopted by the National Assembly on the basis of the second paragraph of Article 23a of the CCA.
 
 
B – II
 
The Decisive Influence of Voters on the Allocation of Deputy Seats
 
24. The applicant challenges Articles 90, 91, 92, and 93 of the NAEA, which determine the manner of establishing the results of elections to the National Assembly and the allocation of deputy seats; however, in light of the applicant’s allegations, it was only necessary to review the constitutionality of the second paragraph of Article 91 of the NAEA. The applicant claims that the regulation of the allocation of seats is inconsistent with Article 3, the fifth paragraph of Article 80, and the first paragraph of Article 82 of the Constitution. Although the applicant did not substantiate its allegations with reference to individual provisions of the Constitution, it follows from its statements taken in their entirety that its main allegation is that the statutory regulation of the allocation of seats does not correspond to the requirement determined by the fifth paragraph of Article 80 of the Constitution, i.e. that voters shall have a decisive influence on the allocation of seats to individual candidates. The challenged regulation allegedly leads to a situation where such decisive influence is in the hands of the proposers of candidates, which are generally political parties, and not the voters. The applicant believes that this constitutional requirement would only be satisfied if “election results guaranteed an equal distribution of deputies across the electorate,” which entails that “every electoral district would have to have an elected deputy.”
 
25. The decisive question in the case at hand is thus whether the regulation of the allocation of deputy seats in the NAEA corresponds to the constitutional requirement that voters have a decisive influence on the allocation of seats to the candidates.
 
26. The Constitutional Court already adopted certain positions with regard to the decisive influence of voters on the allocation of seats to the candidates (cf. Orders No. U-I-226/00 and No. U-I-346/05); however, these positions were scattered and closely linked to the claims of the individual petitioners, which more or less referred to the drawing up and size of electoral districts and the observance of a relative rather than the absolute number of votes in the allocation of seats and the allegedly ensuing unequal suffrage. By Order No. U-I-346/05, the Constitutional Court adopted the position that “within the regulation of constituencies and electoral districts currently in force and in accordance with the principle of equal suffrage, a direct influence of voters on the allocation of seats to the candidates can only be ensured by taking into account a relative election result.” However, in none of the cited cases did the Constitutional Court adopt a comprehensive position regarding the interpretation of the fifth paragraph of Article 80 of the Constitution or the question of whether the system of personalisation that takes into account the relative election result of a candidate in an electoral district is as such consistent with the Constitution.
 
27. In 2000, the CA80 supplemented Article 80 of the Constitution by introducing a new fifth paragraph, by which the Constitution framer regulated at the constitutional level (i.e. constitutionalised) three fundamental elements of the electoral system: deputies (except for the deputies of the national communities) are elected (1) according to the principle of proportional representation (2) with a four-percent threshold required for election to the National Assembly, (3) with due consideration that voters have a decisive influence on the allocation of seats to the candidates. Considering that at the most fundamental level electoral systems are divided into two groups (i.e. proportional and majority systems), it is clear that the Constitution framer determined an allocation of deputy seats according to the principle of proportional representation (i.e. a proportional system) as the primary element of the electoral system. Within this fundamental constitutional framework, it determined two additional elements (i.e. an electoral threshold and a decisive influence of voters on the allocation of seats to the candidates), which function as corrective factors of the proportional system and thus narrow the field of what is constitutionally admissible. In the case at hand, the Constitutional Court did not consider the electoral threshold (i.e. a prohibitive clause), which is generally intended to prevent fragmentation of the political composition of the National Assembly as the representative body and thus ensure a more stable and effective government.[3], [4] The interpretation of the elements of proportional representation and a decisive influence of voters on the allocation of seats as well as their mutual relationship was decisive for these proceedings. It is clear that the statutory implementation of the requirement that voters have a decisive influence must not alter the fundamentally proportional nature of the electoral system. It would be unconstitutional if a majoritarian electoral system were introduced in order to ensure “a decisive influence of voters”. Therefore, the applicant’s statements that this requirement would only be satisfied if “election results guaranteed an equal distribution of deputies across the electorate,” which entails that “every electoral district would have to have an elected deputy,” are manifestly unsubstantiated. This could only be ensured in a majoritarian electoral system.
 
28. The constitutional concept of proportional representation entails a system of allocating seats that is characterised by the fact that the political composition of parliament reflects the political structure of society or that the seats are allocated in proportion to the support that individual groups of voters express at elections.[5] The concept of proportional representation thus defines the electoral system in its narrower sense, i.e. the system for allocating seats, the essence of which is that seats are allocated to candidates or lists of candidates in such a manner that the allocated number of seats is proportionate to the support given to candidates by voters at elections. It is characteristic of proportional systems that voters choose among a number of candidates (as a general rule, among lists of candidates) in plurinominal constituencies (in contrast to majoritarian systems, where individual candidates are elected in uninominal constituencies). There exist different forms of proportional electoral systems, which differ from each other particularly as regards the size of the constituencies, the manner in which votes are cast (for candidates or for lists of candidates), and the manner of the allocation of seats; however, the Constitution makes no mention of such. From the perspective of the fifth paragraph of Article 80 of the Constitution (the principle of proportional representation), any electoral system that in principle ensures a proportional allocation of deputy seats according to their electoral success is therefore constitutionally admissible.
 
29. In addition to the electoral threshold, the legislature is only limited by the constitutional requirement that voters have a decisive influence on the allocation of seats when deciding on the individual elements of the proportional electoral system. It is clear that this requirement cannot be satisfied already by the fact that all deputies are elected by the voters (i.e. that we do not have appointed or hereditary members of parliament upon whom the voters would have no influence). In such a sense, a “decisive influence of voters” is ensured in all democratic systems and follows already from the second paragraph of Article 80 of the Constitution, which states that (all) deputies are elected by universal, equal, direct, and secret voting. The requirement that voters have a decisive influence on the allocation of seats must therefore entail more than simply that deputies are elected by the voters, as it would otherwise prove unnecessary. When interpreting this constitutional requirement the Constitutional Court proceeded from established methods of legal interpretation, particularly from the linguistic meaning of the text of the Constitution and also considering the intention of the Constitution framer as follows from the materials for the adoption of the CA80 (i.e. historical interpretation).
 
30. On the basis of interpretation, the following conclusions may be drawn from the text of the Constitution, according to which “voters have a decisive influence on the allocation of seats to the candidates.” The fact that the Constitution refers to the influence of voters on “the allocation of seats to the candidates” – and not, for example, the allocation of seats to lists of candidates (or political parties) – clearly points towards the conclusion that the Constitution does not refer to the influence of voters on how many seats an individual list of candidates will obtain in a constituency, but to the influence of voters on which of the candidates on a list will obtain a seat. Although it is inherent in elections that the influence of voters is ensured in more or less all stages of an election (e.g. in the allocation of seats to lists of candidates or even already during the nomination of candidates), the Constitution requires that voters have a specific influence in the last stage of the election process when seats are allocated to concrete persons (i.e. personalisation). The Constitution thus gives the legislature a certain margin of appreciation with regard to how it will regulate the influence of voters in the preceding stages of the election process, and only puts a special emphasis on such influence with regard to personalisation. The Constitution refers to voters in the plural (and not to an individual voter in the singular). Such is understandable, as elections are a process during which the otherwise individual (personal) right to vote is exercised in a collective manner,[6] and therefore the influence of voters on the allocation of seats to the candidates is also exercised in the same manner. The Constitution thus determines not only that deputies are elected by voters (which is a given in a democratic system), but also that the voters from a constituency taken as a whole have an influence on which of the candidates will be allocated a seat, thereby requiring the personalisation of deputy seats within the proportional electoral system.
 
31. The essential question is what it means for the influence of voters on the allocation of seats to individual candidates to be decisive. According to the Slovar slovenskega knjižnega jezika [Dictionary of the Slovene Literary Language], something is decisive when it “causes something to happen in a specific manner, to become such as it is.” At the level of general linguistic use, decisiveness thus means that something is the reason for the creation (realisation) of something else. It thus concerns the causal relationship between two elements. When interpreting the fifth paragraph of Article 80 of the Constitution, such an understanding of the word decisive entails that it is the voters who “cause” the allocation of seats to individual candidates. The collective expression of the will of the voters must be the exclusive and direct reason for the allocation of deputy seats to individual persons. A decisive influence of voters on the personalisation of deputy seats therefore entails that the allocation of seats is in the hands of the voters, and not in the hands of other subjects, also not in the hands of the proposers of the lists of candidates (i.e., as a general rule, political parties). The composition of the National Assembly must depend on the collective will of the voters.
 
32. In light of the specific legal nature of the right to vote (i.e. the collective exercise thereof) and the text of the Constitution, which refers to voters in the plural, the constitutional requirement that voters have a decisive influence cannot be interpreted in the sense of the greatest possible influence of every individual voter. This requirement is namely not an element of the right to vote as a human right (if this were the case, it would be included already in the second paragraph of Article 43 of the Constitution and the question would arise as to why its special regulation in the chapter on the organisation of the state was necessary), but constitutes an objective element of the electoral system. If it were an element of the right to vote, the legislature would also be substantially limited in the choice of electoral system within the constitutional requirements, as, provided it wanted to act consistently, it would have to provide each and every voter with an opportunity to influence the selection of the candidates for each and every of the 88 deputy seats. Therefore, the relationship between the principle of proportionality and the decisive influence of voters is not one of contradiction, which would occur if two human rights of equal rank clashed and where in accordance with the principle of proportionality the highest possible degree of the realisation of both would be required (i.e. a so-called practical concordance). The decisive influence must be understood as an objective and collective element of the allocation of deputy seats in the framework of the proportional electoral system, and therefore it cannot be reviewed from the perspective of the individual voter. Namely, if from the fifth paragraph of Article 80 of the Constitution there followed the requirement to “maximise” the constitutionally determined elements of the electoral system, this question could also arise with regard to the question of proportional representation – i.e. whether the statutory regulation currently in force ensures the best possible balance between the share of votes and the share of allocated seats, which could in turn raise questions regarding the number of constituencies (and consequently the number of deputies elected in the individual constituencies), electoral coefficients, the electoral threshold, etc.[7]
 
33. Voters express their will at elections by casting their votes. Their decisive influence must be reflected in the outcome of the vote. On the one hand, the constitutional principle of proportional representation requires that seats be allocated in proportion to the support of individual groups of voters. On the other hand, the constitutional requirement that voters have a decisive influence requires that voters express their support for (one or more) individual candidates by casting their votes, as otherwise it cannot be ensured that the personalisation is “in the hands of” the voters. If understood in this manner, these general constitutional requirements enable the legislature to choose different kinds of proportional electoral systems, which are characterised by the fact that voters vote for candidates,[8] not only for lists of candidates. However, the Constitution does not determine how voters vote for candidates.[9] Such entails that the fifth paragraph of Article 80 of the Constitution also does not require that voters as individuals must have the possibility to choose among different candidates from the same list or among candidates from different lists within a constituency. Different systems, which ensure a voter’s influence in a different manner, and perhaps also to a greater extent, would be constitutionally admissible, as they are not prohibited by the Constitution. However, they are not constitutionally required by the fifth paragraph of Article 80 of the Constitution. The choice among them is therefore a question of the appropriateness of the statutory regulation and a political question par excellence. Hence, it falls within the legislature’s margin of appreciation.[10]
 
34. As regards the applicant’s statements that link the decisive influence of voters with an equal territorial representation of the voters in the National Assembly in the sense that every electoral district should have its own deputy, the Constitutional Court additionally notes (see also paragraph 27 of the reasoning of this Decision) that, within the current system of allocating seats and their personalisation, a positive characteristic of the electoral districts lies precisely in the fact that they bring the candidates closer to the voters and to a certain extent ensure the territorial dispersion of seats, although it is not guaranteed that every electoral district will have a deputy. It must be noted that other means of personalisation, although they do ensure individual voters a greater possibility to influence the choice of candidates (e.g. preferential voting within the same list), do not guarantee greater territorial dispersion of deputy seats, but in fact rather lesser dispersion, as they enable the concentration of seats in regional centres within individual constituencies.
 
Review of the Second Paragraph of Article 91 of the NAEA
 
35. Although the applicant challenged a number of Articles of the NAEA that regulate the allocation of deputy seats (Articles 90, 91, 92, and 93 of the NAEA), in light of its allegation the Constitutional Court only reviewed the constitutionality of the second paragraph of Article 91 of the NAEA, which refers to the constitutional requirement that voters have a decisive influence on the allocation of seats to the candidates.
 
36. The statutory regulation in force ensures the principle of proportional representation by allocating deputy seats to the candidates at two levels – at the level of the eight constituencies and at the level of the state as a whole, whereby lists that fail to obtain at least four percent of the total number of votes at the state level (i.e. the electoral threshold) do not participate in the allocation. The Droop quotient is applied in the allocation of seats in the constituencies.[11] The seats not allocated in the constituencies are allocated at the state level according to the d’Hondt formula.[12]
 
37. The starting point for the allocation of seats to individual candidates (i.e. personalisation) in the challenged statutory regulation is the fact that each of the eight constituencies is divided into eleven electoral districts (the first and fifth paragraphs of Article 20 of the NAEA). Only one candidate from a list of candidates stands for election in an electoral district (the fifth paragraph of Article 20 and the second paragraph of Article 49 of the NAEA), and, when determining a list of candidates, the proposer of the list also determines the electoral district in which the individual candidates are to stand for election (the first paragraph of Article 49 of the NAEA). Rolls of confirmed lists of candidates and of the candidates standing for election in the individual electoral districts are published before an election (Articles 61 and 62 of the NAEA), and, in addition to the name and family name of each candidate, the ballot paper includes the name of the list of candidates that individual candidates belong to (the third indent of the second paragraph of Article 73 of the NAEA). Voters cast their vote by circling the serial number in front of the name and family name of the candidate they wish to vote for (the third paragraph of Article 73 of the NAEA). While expressing their will, voters thus have in front of them a ballot paper containing a list of candidates accompanied by the names of the lists they belong to, which is determined by the proposers of the individual lists of candidates. When a voter circles the serial number in front of the name and family name of a candidate, he or she casts a vote for that candidate and thereby inevitably also for the list of candidates that the candidate belongs to (the third indent of the second paragraph of Article 73 and the third paragraph of Article 73 of the NAEA). With one action the voter votes for a specific candidate on a list and expresses his or her support for that list of candidates as a whole (i.e. for all candidates on the list). The votes cast in favour of an individual list of candidates from all electoral districts in a constituency are added up and therefore the individual candidates from a list are in fact elected with the support of the voters from the entire constituency. An individual candidate is thus not elected solely by the votes of the voters from the electoral district wherein he or she stood for election, but a sufficient level of support enjoyed by the list of candidates in all electoral districts in a constituency is a precondition for each seat obtained. Only after such support has been established are the obtained seats allocated to the individual candidates according to the results in the electoral districts. Candidates from a list of candidates are elected according to their rank calculated on the basis of the share of their votes in the total number of votes cast in the electoral district (the second paragraph of Article 91 of the NAEA). This applies to candidates elected in constituencies on the basis of the Droop quotient as well as candidates who obtain their seats in the allocation at the state level on the basis of the d’Hondt formula.
 
38. Within the electoral system in force, the influence of voters on the allocation of seats to the candidates is thus ensured by the fact that (1) voters vote for individual candidates in electoral districts (and thus also vote for the lists of candidates they belong to) and that (2) from an individual list of candidates seats are allocated to those candidates who obtained the greatest shares of votes in the total number of votes cast in the electoral districts; during the stage of seat allocation to individual candidates, candidates from lists submitted by the same proposer compete with one another through a comparison of their relative success in their electoral districts. The question at issue is thus whether such manner of personalisation of deputy seats corresponds to the constitutional requirement that voters have a decisive influence on the allocation of seats to the candidates.
 
39. The rule that within lists of candidates submitted by the same proposer seats are allocated to individual candidates according to their relative success in their electoral district compared to the success of the candidates of the list of the same proposer in other electoral districts excludes the possibility that seats are allocated according to the order as determined by the proposer of the list at the level of the constituency. As the decisive influence of voters on the allocation of seats determined by the fifth paragraph of Article 80 of the Constitution entails the collective influence of voters, which excludes the direct influence of the proposers of the lists, it must be concluded that the challenged statutory regulation ensures such influence of voters. In the system currently in force, proposers of lists (i.e., as a general rule, political parties) do not have a decisive influence on which of their candidates will become a deputy in the National Assembly. Their influence entails merely the determination of the electoral district in which individual candidates will stand for election. They can only make an educated guess about the electability of the candidates on the basis of the results of past elections and an a priori assessment of the support that individual candidates enjoy among the voters in a specific district. Such guesses will always be inherently linked to the functioning of political parties, as it is common knowledge that, in this regard, they adapt accordingly to every electoral system. In accordance with the challenged regulation, the final and therefore decisive vote on who will obtain a deputy seat lies with the voters. That it is precisely the voters who have a decisive influence on the composition of the National Assembly clearly follows from a comparison of every actual composition of the National Assembly to its hypothetical compositions that would have occurred if voters could only have voted for lists (and not also for a specific candidate) and the seats would have been allocated to the candidates in accordance with the order as determined by the proposers of the list. In such event, the composition of the National Assembly would have been substantially different. Therefore, it cannot be denied that the challenged regulation fulfils the condition that voters have a decisive influence on the allocation of seats to the candidates. 
 
40. That the regulation currently in force is not inconsistent with the fifth paragraph of Article 80 of the Constitution is also supported by a teleological interpretation of the fifth paragraph of Article 80 of the Constitution, which can be obtained by taking into account the text of Section II of the CA80, and its historical interpretation as follows from the materials underlying the adoption of this constitutional act.
 
41. When adopting the fifth paragraph of Article 80 of the Constitution, the Constitution framer determined some new elements of the electoral system in Section II of the CA80.[13] These were intended to apply to the parliamentary elections in 2000 and to all subsequent elections until the enactment of amendments to the NAEA. With regard to all other aspects, the Constitution framer determined that elections be carried out in accordance with the NAEA/95 in force at the time, which ensured personalisation to essentially the same extent and in the same manner as the NAEA currently in force even before the enactment of the CA80. It did, however, abolish the so-called national lists, which excluded the influence of voters on the allocation of seats to the candidates, as a certain proportion of deputies of the National Assembly (i.e. up to a maximum of one half of the seats allocated at the level of the state) was dependent exclusively on the will of the proposers of the lists of candidates.
 
42. In Section II of the CA80 the Constitution framer (1) abolished national lists[14] and upheld personalisation by means of consideration of candidates’ relative success in electoral districts; however, (2) instead of explicitly requiring an (additional) consolidation of the NAEA with the fifth paragraph of Article 80 of the Constitution, it determined that the provisions of this Section would apply to all elections to the National Assembly “until the enactment of amendments to the NAEA,” but (3) it did not set a deadline by which the legislature was to enact amendments to the NAEA, as is the usual practice in instances where section II of a constitutional act merely determines a transitional regulation thus requiring the consolidation of legislation with the constitutional amendment.[15] Such also allows the interpretation that the Constitution framer deemed that Section II of the CA80 satisfies the requirements referred to in the fifth paragraph of Article 80 of the Constitution.
 
43. Taking into account a historical and teleological interpretation, the legislature’s conviction that the constitutional requirement that voters have a decisive influence referred to in the fifth paragraph of Article 80 of the Constitution is satisfied already by the amendments determined in Section II of the CA80 also follows from the explanatory memorandum of the Draft of the Constitutional Act Amending Article 80 of the Constitution of the Republic of Slovenia (hereinafter referred to as the Draft CA80), which was prepared by the Commission for the Electoral System and Constitutional Amendments (hereinafter referred to as the Commission) as the proposer of this constitutional amendment. In the memorandum to Section I of the CA80, i.e. regarding the new constitutional text, the Commission wrote that this amendment to the Constitution “enables the introduction of all forms of proportional representation or proportional electoral systems. However, it excludes the possibility of allocating seats according to the order as determined on a list of candidates by the proposer of the list (i.e. a political party or a different proposer of a list), as well as the possibility of applying so-called national lists, as it requires that voters have a decisive influence on the allocation of seats to the candidates.” In the memorandum to Section II of the CA80, the Commission noted that this Section “ensures the implementation of the proposed amendment of the Constitution and the transition to its application” and that “seats are, as previously, allocated to the candidates who have obtained the highest share of votes in their electoral district, which ensures a decisive influence of voters on the allocation of seats to the candidates”.[16] It is evident that the legislature understood the constitutional amendment in the same manner when it adopted the NAEA-B in 2006, which entailed the transposition of the provisions of Section II of the CA80, as it stated in the legislative materials regarding such that the first reason underlying the adoption of the amendment was the consolidation of the NAEA with the CA80 or “the transposition of the legal regulation from the operative part of the CA80, which is typical statutory substance matter, into the [NAEA]”.[17]
 
44. In light of the above, the Constitutional Court held that, although it is not comparable to some forms of voters’ decisive influence on the allocation of seats to the candidates in proportional electoral systems as known from comparative law, it cannot be claimed that within the framework of the required system of proportional representation the challenged regulation does not ensure that voters have a decisive influence on the allocation of seats to the candidates.[18] Therefore, the second paragraph of Article 91 of the NAEA is not inconsistent with the fifth paragraph of Article 80 of the Constitution (Point 1 of the operative part). Within the limits of the outlined constitutional requirements, the choice of a concrete electoral system, including the manner of personalisation (also such that would ensure a greater influence of individual voters), falls into the legislature’s margin of appreciation and is not a matter to be reviewed by the Constitutional Court.[19]
 
45. The applicant also alleges that the second paragraph of Article 91 of the NAEA is inconsistent with Articles 3 and 82 of the Constitution, but it does not substantiate these allegations, therefore the Constitutional Court could not verify them.
 
 
B – III
 
Review of the Mutual Consistency of Article 4 of the AECEDNA and the Third, Fourth, and Fifth Paragraphs of Article 20 of the NAEA from the Perspective of the Principles of a State Governed by the Rule of Law
 
46. The applicant claims that Article 4 of the AECEDNA is inconsistent with Articles 1, 2, and 20 of the NAEA. Article 1 of the NAEA determines that deputies of the National Assembly are elected on the basis of universal and equal suffrage in free and direct elections by secret ballot. In accordance with Article 2 of the NAEA, deputies are elected in constituencies, namely according to the principle that one deputy is elected per an approximately equal number of inhabitants and the principle that political interests are proportionately represented in the National Assembly.
 
47. According to Article 160 of the Constitution, the Constitutional Court is only competent to review the mutual consistency of two laws if their inconsistency would entail a violation of the principles of a state governed by the rule of law (Article 2 of the Constitution); otherwise it only has jurisdiction to review the consistency of a law with the Constitution. In instances of potential inconsistencies within a law or inconsistent laws, it is the task of courts and other authorities who decide on the rights, obligations, and legal interests of natural persons or legal entities to apply different rules of interpretation that are commonly accepted in legal doctrine and applied in legal practice, in order to establish which law has to be applied in an individual case. As long as inconsistencies between laws can be resolved through the application of rules of interpretation, their existence does not entail an inconsistency with the principles of a state governed by the rule of law.[20]
 
48. Article 20 of the NAEA is divided into six paragraphs. It regulates the division of the state into constituencies and electoral districts and determines their importance and the criteria that the legislature has to consider when establishing them. In accordance with the fifth paragraph of Article 20 of the NAEA, every constituency is divided into eleven electoral districts and every electoral district includes an approximately equal number of inhabitants. In each electoral district voters vote for one candidate. The third and fourth paragraphs of Article 20 of the NAEA lay down additional criteria that the legislature has to consider when establishing constituencies and electoral districts, i.e. the geographical integrity and common cultural and other characteristics of these territories; an electoral district may encompass the territory of one municipality, the territory of two or more municipalities, or the territory of part of a municipality. On the basis of these criteria, Article 4 of the AECEDNA, which is the implementing law for the exercise of the mentioned provisions of the NAEA, determines the territories of the individual constituencies and electoral districts.
 
49. In terms of substance, the applicant only asserts an inconsistency of Article 4 of the AECEDNA with Article 20 of the NAEA. It states that at the National Assembly elections in 2014 the ratio of the difference in the size of electoral districts according to the number of eligible voters already amounted to 1:3.73. Consequently, the Constitutional Court only conducted a review within this scope.
 
50. The Constitutional Court already reviewed the assertion that Article 4 of the AECEDNA and Article 20 of the NAEA are inconsistent (as regards the requirement that electoral districts be of [approximately] equal size) in Order No. U-I-128/92. At that time, the Constitutional Court assessed that observance of the criteria referred to in the third and fourth paragraphs of Article 20 of the NAEA (i.e. geographical integrity and other common characteristics of the territories, the highest possible overall integrity of municipalities) necessarily leads to greater deviations – of even up to 50 percent – from the average size of electoral districts according to the number of inhabitants and thus in extreme cases even to a ratio of 1:3 as regards their size. It held that such great deviations entail that we are no longer concerned with electoral districts of approximately equal size. If we compare Article 4 of the AECEDNA solely and in isolation with the fifth paragraph of Article 20 of the NAEA, their inconsistency would be evident; however, in the review, the Constitutional Court also took into account the criteria from the third and fourth paragraphs of Article 20 of the NAEA. As consistent observation of the criterion referred to in the fifth paragraph of Article 20 of the NAEA would necessarily lead to a violation of the third and particularly the fourth paragraphs of the same Article, it interpreted these mutually irreconcilable provisions “in accordance with the legislature’s intent or with the purpose of the law [i.e. the NAEA] as a whole.” By means of such a comprehensive review, it rejected the assertion that Article 4 of the AECEDNA and Article 20 of the NAEA are inconsistent as unsubstantiated.
 
51. In light of the applicant’s assertions regarding the difference in the sizes of the electoral districts, which were confirmed by enquiries at the MI and the NEC, the Constitutional Court decided to reassess the position it adopted in Order No. U-I-128/92.
 
52. As the fifth paragraph of Article 20 of the NAEA determines the number of inhabitants as the criterion for establishing electoral districts, the Constitutional Court requested information on the number of citizens of the Republic of Slovenia with permanent residence in the different electoral districts as of 31 December 2011, 31 December 2013, and 31 December 2014 from the MI. As the MI clarified that it did not posses these data, the Constitutional Court could not study the difference in the sizes of the electoral districts according to the criterion determined by the fifth paragraph of Article 20 of the NAEA. It follows from the data of the NEC, which also do not refer to the number of inhabitants but to the number of eligible voters according to electoral district, that for the elections in 2011 on average 19,428 voters were entered in the electoral registers in the individual electoral districts. In the smallest electoral district (i.e. Hrastnik), 8,527 voters were entered in the electoral register, which amounts to only 43.89 percent of the average number of voters in all 88 electoral districts. In the largest electoral district (i.e. Grosuplje), 30,381 voters were entered in the electoral register, which amounts to 156.37 percent of the average number of voters in electoral districts. The difference in the sizes of the electoral districts according to the number of voters was even greater for the elections in 2014. On average, 19,467 voters were entered in the electoral register in an individual electoral district. In the smallest electoral district (i.e. Hrastnik), there were 8,301 voters, which amounts to 42.64 percent of the average number of voters in electoral districts. In the largest electoral district (i.e. Grosuplje), there were 30,991 voters, which amounts to 159.20 percent of the average number of voters in electoral districts. The difference in the sizes of the electoral districts has thus been increasing in comparison to the situation in 1992 (1:3), when the legislation was enacted. In 2011, the ratio between the smallest and largest electoral districts amounted to 1:3.56, and in 2014 even 1:3.73. Given the data at its disposal, which do not refer directly to the statutory criterion as to the number of inhabitants, but to the number of eligible voters in the individual electoral districts, the Constitutional Court considered these data in its review, taking into account that the ratios between the sizes of the electoral districts would also be very similar if the number of inhabitants were considered.
 
53. The AECEDNA determines the territories of the constituencies and the electoral districts on the basis of the criteria laid down by the NAEA. In doing so, it takes into consideration the organisation of the municipalities and local communities on the day of the enactment of the Act Establishing Constituencies for the Election of Deputies to the National Assembly (Official Gazette RS, No. 46/92 – hereinafter referred to as the AECEDNA/92).[21] It follows from the legislative materials that the AECEDNA/92 (as well as the National Assembly Elections Act, Official Gazette RS, No. 44/92 – hereinafter referred to as the NAEA/92) took into account the principle that every constituency shall include an approximately equal number of inhabitants as the fundamental principle underlying the determination of the constituencies (whereas it did not consider this principle as regards electoral districts).[22] In addition, the AECEDNA/92 also observed the principle that in determining constituencies the smallest territory shall be a municipality, and in determining electoral districts the smallest territory shall be a local community. In accordance with the fourth paragraph of Article 20 of the NAEA/92, the territory of an electoral district was determined to be the territory of one or more municipalities and, if the territory of a municipality was too large, by the territory of a part of the municipality, i.e. the territory of a local community. With regard to constituencies as well as electoral districts, the AECEDNA/92 took into consideration that such entail adjacent territories that are connected (i.e. geographical integrity).
 
54. It follows from the legislative materials concerning the adoption of the AECEDNA-A in 2004 that the establishment of the electoral districts in 1992 was grounded in the then existing system of local self-government of 62 municipalities, and an electoral district most frequently encompassed the territory of one municipality (39), in three instances the territories of two municipalities, and 17 municipalities with a larger number of inhabitants were divided into more than one district. In 1994, during the first wave of establishing new municipalities, the Act Establishing Municipalities and Municipal Boundaries (Official Gazette RS, No. 108/06 – official consolidated text, 9/11, and 31/18 – the AEMMB) established 136 municipalities and 11 urban municipalities (amounting to a total of 147). Their territories were transformed in 1998 by the establishment of a further 45 new municipalities, and another new municipality between 1998 and 2004.[23] In the AECEDNA-A, the legislature followed the hitherto changes made during the transformation of the system of local self-government only to a very limited extent, namely by amending the territories of the fifth and sixth electoral districts in the second constituency.[24] However, it follows from the legislative materials that at that point the legislature was already aware (evidently due to the inconsistency with the criteria referred to in the third and fourth paragraphs of Article 20 of the NAEA) that, due to the requirement of geographical integrity and the requirement that electoral districts encompass the territory of one or more municipalities or a part of the territory of a municipality,[25] the boundaries of the electoral districts would have to be adapted to the boundaries of the new municipalities.[26]  
 
55. Considering the data regarding the number of eligible voters per electoral district for the elections in 2011 and 2014, the disparity between the largest and smallest electoral districts at the state level has been increasing. There thus exist even greater differences in the size of the electoral districts than in 1992 (see paragraph 52 of the reasoning of this Decision). In light of the fundamental transformation of the system of local self-government in 1994 and considering all subsequent changes in the number and territories of municipalities,[27] the territories of the electoral districts are also not adapted to the boundaries of the new municipalities and they no longer fulfil the requirement of geographical integrity or the consideration of common cultural and other characteristics (the third and fourth paragraphs of Article 20 of the NAEA).
 
56. The circumstances are thus completely different than they were at the time of the review conducted by the Constitutional Court in Order No. U-I-128/92. At that time, the Constitutional Court adopted the position that Article 4 of the AECEDNA is not inconsistent with Article 20 of the NAEA, even though it established that the criterion of the equal size of the electoral districts had not been observed. It substantiated such with a comprehensive review of Article 20 of the NAEA, as it deemed that it was only by means of consistent adherence to the criterion of equal size that also the criteria referred to in the third and fourth paragraphs of Article 20 of the NAEA could be realised. It hence arrived at such conclusion on the basis of a weighing of the criteria for establishing electoral districts, which are difficult to reconcile. However, it has to be taken into account that after 26 years and with a completely different organisation of municipalities, the electoral districts no longer comply with any of the criteria referred to in Article 20 of the NAEA. The differences in the size of the electoral districts have been increasing, and neither the boundaries of the existing municipalities nor the criterion of geographical integrity have been observed. Therefore, the third and fourth paragraphs of Article 20 of the NAEA can no longer relativise the importance of the fifth paragraph of Article 20 of the NAEA concerning the equal size of electoral districts. The inconsistency between the criteria referred to in Article 20 of the NAEA and Article 4 of the AECEDNA is such that it results in a hollowing out of the requirement referred to in the fifth paragraph of Article 20 of the NAEA, which requires that “every electoral district includes an approximately equal number of inhabitants.” Article 4 of the AECEDNA is therefore not formulated within the limits of the room to manoeuvre that the legislature determined for itself. In our legal system there thus exist two statutory regulations that are in such conflict that regular methods of interpretation do not enable their content to be construed in a manner that would resolve this conflict. Such conflicts between statutory provisions result in an inconsistency with the principles of a state governed by the rule of law (Article 2 of the Constitution).
 
57. For the outlined reasons and proceeding from the same legal standpoints, the Constitutional Court assessed, differently than in Order No. U-I-128/92, that the inconsistency between Article 4 of the AECEDNA and the third, fourth, and fifth paragraphs of Article 20 of the NAEA is such that it amounts to an inconsistency with Article 2 of the Constitution. If the Constitutional Court finds that the principles of a state governed by the rule of law are violated as a result of the mutual inconsistency of two laws, it may interfere with the provisions of one of the laws or even both of them.[28] As Article 4 of the AECEDNA, which determines the territories of electoral districts, failed to observe the criteria referred to in Article 20 of the NAEA, which the applicant did not challenge, the Constitutional Court established the unconstitutionality of that statutory provision.
 
58. When the Constitutional Court establishes the unconstitutionality of a statutory provision, as a general rule, it abrogates such. The abrogation of Article 4 of the AECEDNA would entail that the territories of the electoral districts would not be determined. In a system where voting is conducted in electoral districts, such would entail that elections could not be held. Electoral districts have to be established and the abrogation of their regulation could result in an unconstitutional legal gap from the perspective of the fundamental constitutional principles of democracy (Article 1 of the Constitution) and of the principle that citizens exercise power through elections (the second sentence of the second paragraph of Article 3 of the Constitution). Therefore, on the basis of the first paragraph of Article 48 of the CCA, the Constitutional Court adopted a decision establishing that Article 4 of the AECEDNA is inconsistent with the Constitution (Point 3 of the operative provisions). In accordance with the second paragraph of Article 48 of the CCA, it required the legislature to remedy the established unconstitutionality within a period of two years (Point 4 of the operative provisions). When setting this deadline, the Constitutional Court considered that modification of fundamental elements of the electoral system as a general rule entails the complex and internally intertwined regulation of individual issues for the enactment of which the legislature must have at its disposal an adequately greater amount of time than the Constitutional Court usually grants thereto in order to respond to an established unconstitutionality.
 
59. As the Constitutional Court established the inconsistency of Article 4 of the AECEDNA with the principles of a state governed by the rule of law (Article 2 of the Constitution), it did not have to adopt a position regarding the allegation of the inconsistency of the challenged regulation with the principle of equal suffrage (Article 43 of the Constitution).
 
 
B – IV
 
Review of Articles 42, 43, and 44 of the NAEA
 
60. The applicant also alleges the unconstitutionality of Articles 42, 43, and 44 of the NAEA, which determine the rules for determining candidates endorsed by political parties and “non-party” candidates. The applicant alleges that the statutory regulation under which the signature of a deputy carries 333 times the weight of the signature of an ordinary citizen, determines such disproportionate conditions for candidacies that it is inconsistent with the principle of the sovereignty of the people enshrined in the first paragraph of Article 3 of the Constitution and the first paragraph of Article 82 of the Constitution, according to which deputies are the representatives of all the people.
 
61. In accordance with Article 42 of the NAEA, candidates may be nominated by political parties or voters. Article 43 of the NAEA[29] determines the conditions for the nomination of candidates who are endorsed by political parties, and Article 44[30] the conditions for the nomination of candidates who are endorsed by voters. A political party may inter alia submit a list of candidates in every constituency if its lists of candidates are supported by the signatures of at least three deputies of the National Assembly (the second paragraph of Article 43 of the NAEA). In an individual constituency a list of candidates may be submitted by the signatures of a group of at least one thousand voters with permanent residence in the constituency (the second paragraph of Article 44 of the NAEA). Non-party lists of candidates may thus be introduced in all constituencies with the signatures of at least 8000 voters.
 
62. The applicant claims that the challenged regulation is disproportionate. It follows from established constitutional case law that the general principle of proportionality (Article 2 of the Constitution) cannot be an independent criterion for the review of constitutionality, but such depends on the established interference with an individual human right (cf. Constitutional Court Decisions No. U-I-219/03, dated 1 December 2005, Official Gazette RS, No. 118/05, and OdlUS XIV, 88, and No. U-I-178/10, dated 3 February 2011, Official Gazette RS, No. 12/11, and OdlUS XIX, 17). The applicant does not allege that the challenged regulation interferes with a human right, and the allegation of disproportionality cannot of itself substantiate the alleged inconsistencies of Articles 42, 43, and 44 of the NAEA with the Constitution.
 
63. Insofar as the applicant’s statements that the challenged regulation determines disproportionately different conditions for the candidacies of non-party candidates in comparison with candidates endorsed by political parties, who may be nominated with the support of three deputies, can be understood as an allegation of inconsistency with the principle of equality before the law enshrined in the second paragraph of Article 14 of the Constitution, they are unsubstantiated. The Constitutional Court has repeatedly stressed that the differentiation between the weight of the signature of a deputy and that of a voter in connection with the determination of lists of candidates is (reasonably) substantiated by grounds that are objectively connected to the regulated subject matter. Already by Decision No. U-I-336/96 it clarified that this regulation “does not entail a differentiation based on personal circumstances (i.e. nationality, race, gender, language, religion, political or other conviction, etc.), but a differentiation that is justified due to the different positions of these actors within the political system. Political parties are organisations that bring together citizens in order to attain political objectives (in particular by nominating candidates at elections), and it is therefore justified that the legislature accords them a special role in the nomination procedure. Deputies of the National Assembly are elected at direct and general elections, and therefore they enjoy – regardless of the electoral system according to which they were elected – the support of a significant part of the electorate. The differentiation of the weight of the signature of a deputy and that of a voter (i.e. the signatures of three deputies outweigh the signatures of up to 800 voters) is objectively justified.”[31] The fact that this differentiation has become more severe following the NAEA-B, as the signatures of three deputies now outweigh the signatures of 8000 voters,[32] does not change the decision of the Constitutional Court.
 
64. It follows from the outlined reasons that the allegations of an inconsistency with the second paragraph of Article 14 of the Constitution are unsubstantiated. The applicant asserts the inconsistency of the challenged regulation with the second paragraph of Article 3 and the first paragraph of Article 82 of the Constitution, but did not substantiate these allegations, therefore the Constitutional Court did not review them.
 
65. In light of the above, the challenged regulation determined by Articles 42, 43, and 44 of the NAEA is not inconsistent with the Constitution (Point 2 of the operative provisions).
 
 
B – V
 
Review of the First Paragraph of Article 7 of the NAEA
66. The applicant also alleges the unconstitutionality of the first paragraph of Article 7 of the NAEA, which determines that the right to vote and to stand for election as a deputy is held by citizens of the Republic of Slovenia who have reached the age of 18 by [the Slovene preposition used here, i.e. “na”, can be understood to mean both “on” or “by”; the applicant appears to believe that it means “on”] the day of the election. In the applicant’s opinion, it follows from this provision that the right to vote and to stand for election as a deputy is only held by those citizens of the Republic of Slovenia whose 18th birthday is on the day of the election, i.e. who come of age on that day.
 
67. The interpretation of the first paragraph of Article 7 of the NAEA provided by the applicant is not substantiated by logical, systemic, or teleological interpretation. Furthermore, this interpretation evidently contradicts the text of the second paragraph of Article 43 of the Constitution, according to which every citizen who has attained the age of 18 years has the right to vote and to stand for election. The right to vote is thus enjoyed by any citizen who attained the age of 18 years before an election or on the day of the election at the latest. An interpretation that is not consistent with the Constitution and at the same time contradicts all established methods of legal interpretation is irrelevant. Such an interpretation cannot substantiate the unconstitutionality of a law. Therefore, the allegation of the inconsistency of the first paragraph of Article 7 of the NAEA with Articles 3, 43, and 44 of the Constitution is unsubstantiated (Point 2 of the operative provisions).
 
 
B – VI
 
68. At the public hearing, the applicant extended the application for the review of constitutionality to include the fifth paragraph of Article 80 of the Constitution. It believes that the National Assembly should have respected the will of the people regarding the electoral system as expressed in the 1996 referendum. As it failed to do so, the possibility of the people actually exercising state power (the second paragraph of Article 3 of the Constitution) is allegedly limited.
 
69. The fundamental procedural requirement for the initiation of proceedings before the Constitutional Court is the jurisdiction of the Constitutional Court. The jurisdiction of the Constitutional Court is regulated by Article 160 of the Constitution and, on the basis of the eleventh indent of the first paragraph of Article 160 of the Constitution, by certain laws. Neither the Constitution nor any laws determine the power of the Constitutional Court to review the mutual consistency of different constitutional provisions. As the Constitutional Court thus lacks the power to review the mutual consistency of constitutional provisions, it rejected the request for a review of the constitutionality of the fifth paragraph of Article 80 of the Constitution (Point 5 of the operative provisions).[33]
 
 
C
 
70. The Constitutional Court adopted this Decision on the basis of Articles 21 and 48 and the first paragraph of Article 25 of the CCA, composed of: Dr Jadranka Sovdat, President, and Judges Dr Matej Accetto, Dr Dunja Jadek Pensa, Dr. Dr. Klemen Jaklič, Dr Rajko Knez, Dr Etelka Korpič – Horvat, Dr Špelca Mežnar, Dr Marijan Pavčnik, and Marko Šorli. Point 1 of the operative provisions was adopted by six votes against three. Judges Korpič – Horvat, Jaklič, and Šorli voted against. Point 2 of the operative provisions was adopted unanimously. Points 3 and 4 of the operative provisions were adopted by eight votes against one. Judge Mežnar voted against. Point 5 of the operative provisions was adopted by eight votes against one. Judge Jaklič voted against. Judge Šorli submitted a dissenting opinion. Judges Korpič – Horvat and Jaklič submitted partly dissenting and partly concurring opinions. Judges Jadek Pensa and Sovdat submitted concurring opinions.
 
 
 
Dr Jadranka Sovdat
President
 
 
 
[1] For a similar view, see: F. Testen in: L. Šturm (Ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, pp. 1138–1139, who in connection with such speaks of legal interest as a fundamental procedural requirement for a request for a review of constitutionality.
[2] The same applies, mutatis mutandis, to instances when a review of constitutionality is requested by a group of deputies if their number exceeds the absolute parliamentary majority and the adoption of the law at issue does not require a more qualified majority than a simple absolute majority (see Constitutional Court Order No. U-I-249/14, dated 1 December 2016).
[3] Cf. F. Grad, Volitve in volilni sistemi [Elections and Electoral Systems], Uradni list Republike Slovenije, Ljubljana 2004, pp. 133 and 134.
[4] With regard to the electoral threshold, see Constitutional Court Decision No. U-I-44/96, dated 13 June 1996 (Official Gazette RS, 36/96, and OdlUS V, 98).
[5] Cf. F. Grad, op. cit., p. 60.
[6] The Constitutional Court already stressed that the right to vote can only be exercised by all voters together in an organised manner and according to a procedure that has been determined in advance and whose goal is to establish representative bodies in a lawful manner in Decision No. Up-304/98, dated 19 November 1998, OdlUS VII, 240, paragraph 11 of the reasoning, and subsequently also, e.g. in Order No. U-I-100/13, Up-307/12, dated 10 April 2014, paragraph 8 of the reasoning. Cf. also J. Sovdat, Volilni spor [Electoral Disputes], GV Založba, Ljubljana 2013, p. 31.
[7] By Decision No. U-I-354/96 (paragraph 9 of the reasoning), which was adopted before the enactment of the CA80, the Constitutional Court, albeit in connection with the principle of equal suffrage, already adopted the position that the Constitution does not limit the legislature’s own political assessment to such an extent that it would have to ensure the best possible balance between the share of votes and the share of allocated seats.
[8] However, subject to the condition that the electoral system fulfils all constitutionally determined elements referred to in the fifth paragraph of Article 80 of the Constitution.
[9] From the perspective of comparative law, the influence of voters on the selection of candidates in proportional electoral systems is ensured through different forms of preferential voting, panachage, ranking within a system with a single transferable vote, etc.
[10] The requirement that voters have a decisive influence in the personalisation stage is not incompatible with additional (secondary) rules that are required for the allocation of seats to candidates when the number of seats gained by individual candidates does not completely correspond to the number of seats gained by the list as a whole. In a preferential vote system, for example, depending on whether candidates are more or less known, it is possible that a lower number of candidates gain a seat on the basis of preferential votes (also subject to the statutory conditions for the consideration of preferential votes) than the total number of seats obtained by the list of candidates on the basis of the system for the allocation of seats. Such can be imagined in connection with parties or lists where very well-known individuals “draw preferential votes to themselves,” thus preventing the dispersion of votes among a sufficient number of candidates. In such instances, it would be admissible to take into account a decisive influence of the proposer of the list with regard to the remaining seats (e.g. the order of the candidates on an individual list).
[11] Such is calculated by dividing the total number of votes cast for all lists of candidates in a constituency by the number of deputies to be elected in the constituency, increased by one, which is rounded up to the next full number. The number of votes cast for a list is divided by this quotient. The list is allocated the number of seats equal to the number of times the quotient divides into the number of votes for the list (the first paragraph of Article 90 of the NAEA).
[12] In the allocation of seats the sums of all the votes that the individual lists have obtained in the entire state are taken into account. Lists of candidates are allocated as many seats as amount to the difference between the number of seats which they would have been allocated on the basis of the sum of the votes received at the state level and the number of seats they already received in the allocation in constituencies (the first paragraph of Article 92 of the NAEA). The seats received by lists submitted by the same proposers at the state level are allocated to the lists in the constituencies with the highest remainder of votes in proportion to the Droop quotient in the constituency (Article 93 of the NAEA).
[13] It determined that:            
– candidate lists which receive less than four percent of all votes in the country shall not be considered in the allocation of seats;
– the Droop quotient shall be applied in the allocation of seats in constituencies in accordance with Article 90 of the National Assembly Elections Act (Official Gazette RS, No. 44/92 and 60/95 – hereinafter referred to as the NAEA/95);
– in the allocation of seats at the state level in accordance with Article 92 of the NAEA/95, the sum of the votes cast for the lists of candidates submitted by the same proposer shall be considered, provided that such lists were on the ballot in two or more constituencies, whereby the lists of candidates submitted by the same proposer are allocated as many seats as amount to the difference between the number of seats which would have been allocated on the basis of the sum of the votes received at the state level, and the number of seats received in constituencies;
– in the allocation of seats at the state level, the second paragraph of Article 93 of the NAEA/95 shall not apply (so-called national lists).
[14] The other elements introduced by Section II of the CA80 did not directly affect the realisation of the constitutional requirement that voters have a decisive influence, but influenced the “math” behind the allocation of seats, thus resulting in a somewhat different realisation of the primary element of the fifth paragraph of Article 80 of the Constitution – the principle of proportional representation.
[15] See the first and second paragraphs of Section II of the Constitutional Act amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia (Official Gazette RS, No. 47/13 – CA90, 97, 99).
[16] Gazette of the National Assembly, No. 52/00.
[17] Gazette of the National Assembly, No. 35/06.
[18] Cf. note No. 9 of this Decision.
[19] As held by the Constitutional Court in Orders No. U-I-128/92, No. U-I-226/00, and No. U-I-346/05.
[20] Cf. Constitutional Court Decisions No. U-I-244/14, dated 10 September 2015 (Official Gazette RS, No. 69/15), paragraph 10 of the reasoning, and No. U-I-303/08, dated 11 February 2010 (Official Gazette RS, No. 14/10), paragraph 4 of the reasoning.
[21] Until the present day, the AECEDNA was only amended in 2004 (The Act Amending the Act Establishing Constituencies for the Election of Deputies to the National Assembly, Official Gazette RS, No. 80/04 – hereinafter referred to as the AECEDNA-A), and the hitherto changes in the system of local self-government and the complete transformation of the network of municipalities (as compared to 1992) were only considered to a very limited extent.
[22] The initial draft of the AECEDNA (Gazette of the National Assembly, No. 14/92) also laid down this principle for the establishment of electoral districts, but the principle was no longer included in the explanatory memorandum of the draft law in the draft for the second reading in the legislative procedure, which stated that this principle did not have to be enacted “as in electoral districts votes in favour of specific candidates are merely cast, but the results are established at the level of the constituency.”
[23] Gazette of the National Assembly, No. 57/04, p. 21.
[24] The transformation of the municipalities of Sežana and Koper due to the movement of certain local communities was followed by the corresponding transformation of two electoral districts.
[25] The principle of respect for the integrity of municipalities prohibits that an electoral district encompasses one municipality and part of another municipality, as held by the Constitutional Court in Order No. U-I-128/92 (the last paragraph of the reasoning). It evidently follows from the legislative materials that this prohibition is not being observed at the moment and that parts of individual municipalities are attached to electoral districts that encompass, as a whole or in part, parts of other municipalities.
[26] The legislature explained the amendment of the territories of the electoral districts by stating “that, due to the establishment of new municipalities or the reorganisation of the system of local self-government, it would be reasonable to also reorganise the territories of the electoral districts in order to observe the principle of geographical integrity. The territories of the individual electoral districts are namely a consequence of the strict adherence to municipal boundaries during the establishment of the electoral districts in 1992, which, however, no longer correspond to the boundaries of the current municipalities. And if we want to ensure that the principle referred to in the AECEDNA that electoral districts encompass the territory of one or two municipalities or parts of one municipality is consistently observed, the boundaries of the electoral districts must be adapted to the boundaries of the new municipalities.” (Gazette of the National Assembly, No. 57/04, p. 22)
[27] Up until the Act Establishing Municipalities and Municipal Boundaries (Official Gazette RS, No. 9/11 – AEMMB-G), which changed the territories of the municipalities of Mirna and Trebnje by establishing the Mirna municipality, and Constitutional Court Decision No. U-I-114/11, dated 9 June 2011 (Official Gazette RS, No. 47/11, and OdlUS XIX, 23), which established the Ankaran municipality.
 
[28] By Decision No. U-I-227/00, dated 14 February 2002 (Official Gazette RS, No. 23/02, and OdlUS XI, 23), it, for example, abrogated both challenged laws (paragraph 19 of the reasoning).
[29] Article 43 of the NAEA determines as follows:
“A political party shall nominate candidates in accordance with the procedure determined by its rules. The list of candidates shall be determined by secret ballot.
A political party may submit a list of candidates in every constituency, provided its lists are supported by the signatures of at least three deputies of the National Assembly. The signatures of the deputies shall be submitted to the National Electoral Commission on the prescribed forms.
A political party may submit a list of candidates in a constituency provided the list of candidates has been determined by members of the political party who have the right to vote and permanent residence in the constituency, and that the list of candidates is supported by the signatures of at least fifty voters who have permanent residence in the constituency.
A political party may submit a list of candidates in a constituency also in the event the list of candidates has not been determined in the manner described in the preceding paragraph provided the list of candidates is supported by the signatures of at least one hundred voters who have permanent residence in the constituency.
Two or more political parties may submit a joint list of candidates.
Each gender must not comprise less than 35% of the total actual number of female and male candidates on the list.
The provision of the preceding paragraph shall not apply to candidate lists with only three candidates, whereby a candidate list with only three candidates must contain at least one representative of each gender.”
[30] Article 44 of the NAEA determines as follows:
“Voters shall support the nomination of a list of candidates by signature.
A list of candidates in a constituency shall be nominated if it is supported by the signatures of at least one thousand voters who have permanent residence in the constituency.
The provisions of paragraphs six and seven of Article 43 of this Act shall apply for the lists referred to in this Article.”
[31] Cf. Constitutional Court Decision No. U-I-220/97, dated 29 October 1997 (Official Gazette RS, No. 70/97, and OdlUS VI, 137), and Orders No. U-I-114/09, dated 27 May 2009, and No. U-I-291/11, dated 5 April 2012.
[32] This amendment raised the number of voters’ signatures required for non-party lists of candidates in a constituency from 100 to 1000.
[33] Cf. Constitutional Court Orders No. U-I-214/00 and No. U-I-262/00.
 
 
U-I-32/15-61 
29 November 2018
 
 
Dissenting Opinion of Judge Marko Šorli
regarding Decision No. U-I-32/15, dated 8 November 2018
 
 
I voted against Point 1 of the operative provisions – i.e. that the second paragraph of Article 91 of the NAEA, which determines the allocation of deputy seats obtained by a list of candidates to individual candidates, is not inconsistent with the Constitution.
 
Article 80 of the Constitution determines the three fundamental elements of the electoral system: a proportional system for allocating deputy seats, the personalisation of elections, and an electoral threshold. Although I agree with the majority that the constitutional requirement that voters have a decisive influence on the allocation of deputy seats cannot be interpreted in the sense of the greatest possible influence of an individual voter, such does not entail that any kind of influence of an individual voter must be deemed to be decisive. Among proportional electoral systems there exist a number of means that ensure a voter’s influence on the allocation of seats to a different extent.
 
According to the majority position, within the electoral system in force, such an influence on the allocation of seats to candidates is ensured by the fact that voters vote for individual candidates in electoral districts and that from an individual list of candidates seats are allocated to those candidates who obtained the greatest shares of votes in the total number of votes cast in the electoral districts. A criticism of this regulation states that voters’ participation is excessively limited because there is a difference between an electoral district and a constituency. An individual voter may only cast one vote in his or her electoral district despite the fact that 11 deputies are elected in every constituency, i.e. the unit of election. It is a particularity of parliamentary elections in Slovenia that the instructions for voters state that the voter votes for a candidate, but the vote primarily goes to a list of candidates.[1]
 
The main arguments in favour of the majority decision, i.e. that the challenged regulation ensures that voters have a decisive influence, were in fact adopted from the explanatory memorandum of the Draft of the Constitutional Act Amending Article 80 of the Constitution of the Republic of Slovenia, which was prepared by the Commission for the Electoral System and Constitutional Amendments as the proposer of this constitutional amendment; according to such, the amendment excludes the possibility of allocating seats according to the order as determined on a list of candidates by the proposer of the list and seats are allocated to the candidates who have obtained the highest share of votes in their electoral district.
 
I am convinced that the true meaning of the term “decisive influence of voters” cannot be established only on an abstract regulatory level, but primarily by means of a comparison of the concrete regulation with other functioning systems in comparable countries (especially EU Member States). A comparative perspective shows that the regulations on personalisation in proportional systems in other countries (e.g. Austria, Belgium, Finland, Ireland, the Netherlands, Denmark) enable a voter to choose among different candidates of the same party; this is not possible within the Slovene system, the voter does not have such a choice and the political party forces a candidate upon the voter. In some of the mentioned systems, voters enjoy different combinations of the right to choose – i.e. by voting for a list of candidates as ranked by the party or by casting a preferential vote (e.g. Belgium). In such a manner, the influence of voters on the allocation of seats is ensured. The influence of voters is even greater in systems where parties do not rank their candidates and the decision on the candidates depends entirely on preferential votes (Finland, Denmark). Some systems further increase the influence of voters by ensuring that voters also have an influence on the nomination of the candidates and thus indirectly also on the final allocation of seats. It is thus the voters and not the party who have the last word regarding the allocation of seats.
 
In comparison with these systems, it cannot be claimed that in the Slovene electoral system the voter has a decisive influence on the allocation of seats. Unfortunately, when deciding whether the challenged regulation ensures that voters have a decisive influence, the majority of judges did not apply a comparative law approach and thus failed to consider that in the period between 2000 and today the social and political circumstances have changed and that possibilities of political participation have developed that ensure that voters have a significantly greater influence on the choice of deputies. If the Constitutional Court truly considered the requirement that the electoral system must ensure that voters have a decisive influence on the allocation of seats, it should have found that, in comparison to numerous foreign proportional systems, the influence of [Slovene] voters on the allocation of deputy seats is in fact weak and definitely not decisive, and therefore the challenged regulation is inconsistent with the Constitution.
 
 

 

                                                                                                          Marko Šorli
                                                                                                             Judge
 
[1] S. Zagorc, Volilni sistem in delovanje parlamentarnega sistema [The Electoral System and the Functioning of the Parliamentary System], Podjetje in delo, Nos. 6–7 (2011).
 
 
U-I-32/15-62 
6 December 2018
 
 
 
Concurring Opinion of Judge Dr Dunja Jadek Pensa
regarding Decision No. U-I-32/15, dated 8 November 2018
 
 
 
In this concurring opinion, I will only focus on the decision contained in Point 1 of the operative provisions of the majority Decision.
 
 
I.
 
If I reduce the request of the National Council to its essence, the key allegation was that the National Assembly Elections Act (Official Gazette RS, Nos. 109/06 – official consolidated text, and 23/17 – hereinafter referred to as the NAEA) circumvents the rule that the majority of votes determines the allocation of seats to candidates. I have positioned it within the context of the challenged second paragraph of Article 91 of the NAEA.[1] This provision regulates the confrontation among candidates from the same list of candidates (i.e. one that has obtained one or more seats in a constituency) by comparing their relative success in their electoral districts (cf. paragraph 38 of the reasoning of the Decision) as a criterion for the allocation of seats to candidates. It is therefore evident that the allocation of seats to candidates is based neither on a comparison of their success according to the number of votes obtained nor on a comparison of their success in relation to the same group of voters. The electorate of a constituency is namely divided into electoral districts.
 
The reply to the mentioned allegation depended on the interpretation of the constitutional requirement that “voters have a decisive influence on the allocation of seats to the candidates” in the context of the fifth paragraph of Article 80 of the Constitution. Such concerns the provision that was introduced by the Constitutional Act Amending Article 80 of the Constitution of the Republic of Slovenia (Official Gazette RS, No. 66/2000 – hereinafter referred to as the CA80), more specifically by Section I of the CA80. At the outset, I would like to underline two things. Firstly, that Section II of the CA80 determined the manner of implementation of Section I of the constitutional amendment, which was subsequently incorporated into the NAEA, and, secondly, that the Constitutional Court has already adopted the position that Section II of the CA80 has the character of provisions of constitutional law and therefore the Constitutional Court is not competent to review its consistency with the Constitution.[2]
 
 
II.
 
The mathematical formulae on the basis of which, after an election, the results of voting are translated into (1) the allocation of seats to the lists of candidates and (2) the allocation of seats to candidates from these lists in accordance with the challenged regulation effect that a seat is allocated to a candidate from a list of candidates that had been set up for a constituency despite the fact that not all of the voters from that constituency could have a say regarding this candidate and even if the constituency (not the electoral district) is one that guaranteed electoral success. What is more, not only did not all of the voters from the constituency have their say as regards the candidate, but the great majority of these voters did not have their say about him or her. A candidate can namely stand for election in a maximum of two out of the eleven electoral districts that constitute a constituency, and, within the electoral districts, only these candidates are voted on. All of the voters who did not cast their vote in the electoral district wherein a (by this time already) elected deputy stood for election were thus cut off from him or her in the electoral process. This entails that the great majority of the voters in the constituency wherein this candidate was elected could not cast their vote with regard to this candidate. The conclusion that the votes of these voters could not have been decisive in the allocation of a seat to this candidate seems to present itself.
 
This is enabled (inter alia) by the challenged provision, according to which “candidates from a list of candidates are elected according to their rank calculated on the basis of the share of their votes in the total number of votes cast in the electoral district or the total number of votes cast in the two electoral districts” (the second paragraph of Article 91 of the NAEA). Allow me, however, to stress that this provision, which is crucial for the personalisation of elections, is embedded within the regulation of the proportional electoral system and is only activated once a “list of candidates” obtains (at least) one seat within a constituency and during the allocation of seats at the state level (cf. paragraph 37 of the reasoning of the Decision). The decision on the seats obtained and the number of such seats are determined on the basis of the Droop quotient and the d’Hondt formula in accordance with the number of voters who, when voting for a candidate, have also chosen his or her list of candidates, naturally also taking into account the constitutionally required electoral threshold. In order to understand the legal dimensions of the electoral system, which also shape voters’ possibility of choosing within the challenged regulation, one must therefore also have in mind (at least) the following characteristic of the NAEA: a candidate’s nomination is inextricably linked to a confirmed list of candidates. Such is expressed on the ballot paper by placing the name of the list of candidates next to the name of the candidate (cf. paragraph 37 of the reasoning of the Decision).[3] When voting, voters are therefore not only faced with the individual candidate, but unavoidably and directly also with the list on which he or she is standing for election. In such a manner, every voter is concurrently addressed by the candidate who is standing for election in the electoral district wherein the voter is casting his or her vote, as well as all other candidates who have co-created a specific list of candidates, but whom the proposer of the list has placed in other electoral districts wherein the voter is not voting.[4] In the domestic version of the proportional electoral system, the chance of each of these candidates obtaining a seat is increased by the voter’s vote (cf. paragraph 37 of the reasoning of the Decision). Thus, voters express their support for the policies of those who have co-created a specific list of candidates (i.e. as a general rule, political parties) and who have also decided in which electoral district their candidates will stand for election.
 
The share of votes obtained by a candidate in the total number of votes cast in an electoral district is only decisive for the personalisation of seats obtained in such manner. In this framework, the relative success of a candidate in an electoral district and its subsequent comparison with the relative success of the remaining candidates from the same lists of candidates in other electoral districts are thus crucial for such personalisation. Irrespective of the outlined broader legal framework, I can conclude that personalisation according to the NAEA is characterised by partiality. Only votes that the candidate obtained in his or her electoral district can be taken into account (although the votes cast for his or her list of candidates in the constituency, which enabled that the list obtained the seat or seats in the first place, cannot be disregarded). 
 
In spite of the partiality underlying the challenged regulation of the personalisation of elections, I believe that the second paragraph of Article 91 of the NAEA is not inconsistent with the requirement under the fifth paragraph of Article 80 of the Constitution that “voters have a decisive influence on the allocation of seats to the candidates.” Allow me to explain.
 
 
                                                                       III.
 
With regard to the interpretation of the requirement stemming from the fifth paragraph of Article 80 of the Constitution that “voters have a decisive influence on the allocation of seats to the candidates” in the majority Decision (cf. paragraphs 27 through 33 of the majority Decision), I would like to add that I agree with the starting points of the interpretation of the key part of the text of the fifth paragraph of Article 80 of the Constitution,[5], [6] as well as with the meaning of this part of the text revealed by the Decision and which prevailed in the opinion of the majority.
 
In more general terms, it was important for the interpretation of the key part of the text of the fifth paragraph of Article 80 of the Constitution that the (constitutionally relevant) relations that co-define the meaning and therefore the scope of the constitutional requirement that voters have a decisive influence on the allocation of seats to the candidates be defined. It has, inter alia, been taken into consideration that the constitutional requirement under review must be implemented within the framework of a proportional electoral system, this also being a constitutional requirement stemming from the fifth paragraph of Article 80 of the Constitution, and that a systemic interpretation does not allow for the conclusion that the requirement [as to the decisive influence of voters] forms an integral part of the right to vote. The relationship between the voters, on one hand, and the proposers of lists of candidates, on the other, was only one of the relationships considered in connection with the allocation of seats to candidates (cf. paragraph 31 of the reasoning of the Decision). Understanding the meaning of the phrase “the decisive influence of voters” in this regard as entailing that the allocation of seats to the candidates must be in the hands of the voters and not in the hands of the proposers of the lists of candidates was crucial for the final solution. Precisely due to the fact that the allocation of seats is in the hands of the voters (and not the proposers of the lists of candidates), it cannot be claimed that, from the perspective of the fifth paragraph of Article 80 of the Constitution, the regulation of the electoral system in the narrower sense does not ensure the decisive influence of voters on the allocation of seats. The adopted interpretation thus does not support the argument that the regulation is inconsistent with the Constitution already as, due to the partiality of the allocation of seats to individual candidates, a higher number of votes obtained from voters in a constituency that guaranteed election is not decisive; and, therefore, the influence of voters could be “stronger” than that ensured by the challenged second paragraph of Article 91 of the NAEA. Or, simply put, the challenged regulation is not inconsistent with the Constitution already due the fact that the influence of voters, or of an individual voter, on the allocation of seats to candidates in general could be “greater” than that ensured by the challenged provision of the NAEA.
 
An interpretation that, in the given context, assigned to the open-textured legal term, as its decisive meaning, a different meaning than that which prevailed in the Decision would collide with the definition of the same term in the explanatory memorandum to the draft of the CA80, which the Commission for the Electoral System and Constitutional Amendments (hereinafter referred to as the Commission) prepared concerning the new constitutional text as the proposer of this constitutional act. It follows from such that this amendment to the Constitution “enables the introduction of all forms of proportional representation or proportional electoral systems. However, it excludes the possibility of allocating seats according to the order as determined on a list of candidates by the proposer of the list (i.e. a political party or a different proposer of a list), as well as the possibility of applying so-called national lists, as it requires that voters have a decisive influence on the allocation of seats to the candidates.”[7] It thus suffices that voters (and not some other entity) have an influence on the allocation of seats. It would further collide with Section II of the CA80, the review of which falls outside the jurisdiction of the Constitutional Court (cf. above); as well as with the position that follows from the Commission’s explanatory memorandum, according to which that section “ensures the implementation of the proposed amendment of the Constitution and the transition to its application.”[8] It seems logical to me that by adopting Section II of the CA80 the Constitution framers concurrently expressed that, as it is intended to enable the transition to the new constitutional order, in its opinion, that section is consistent with Section I and it regulates precisely those elements of the electoral system that the implementation of the amendment to the Constitution requires. I could namely not disregard that in doing so the Constitution framers did not dictate to the legislature that the further implementation of the newly established constitutional requirements by the law referred to in the fourth paragraph of Article 80 of the Constitution was required, and, naturally, it therefore also did not determine a time frame for the adoption of a law with content that would satisfy the requirement under Section I of the CA80. The Decision clearly explains all of this when it draws attention to the teleological and historical interpretations of the fifth paragraph of Article 80 of the Constitution (cf. paragraphs 40 through 43 of the reasoning of the Decision).
 
 
IV.
 
The majority’s decision does not entail that the Constitution precludes the legislature from regulating the requirement of the decisive influence of voters on the allocation of seats differently (for example, by enacting one of the electoral systems listed in note No. 9 of the Decision). Not at all. It does, however, entail that by placing the regulation of the electoral system in the narrower sense within the scope of the question of the appropriateness of the statutory regulation it leaves the discussion of such and the search for allegedly more appropriate solutions to political principles. In this regard, I would like to add that I have not overlooked the issue that was pointed out at the public hearing: on the one hand, the Constitution entrusts the National Assembly with the adoption of a law that regulates the electoral system (the fourth paragraph of Article 80 of the Constitution) and therefore the rules that define how it is constituted following every election; on the other hand, we might question the likelihood that deputies who have obtained their seats in accordance with the rules in force would deem those same rules to be inappropriate. However, the effect of the Constitutional Court intervening in the resolution of this issue would, in my opinion, be much worse than the issue itself. It would water down the key political principle upon which the constitutionalisation of the electoral system in the fifth paragraph of Article 80 of the Constitution is based. Such was, I believe, unmistakable: to only frame in a minimalist manner the constitutional requirements for the statutory regulation of the electoral system in the narrower sense (cf. the summarised statements from the travaux préparatoires for the constitutional amendment). And a contrario: anything that exceeds this minimal requirement of the Constitution, therefore, has been left to regulation according to political principles.
 
In this regard, the message of the majority Decision is the same as the message of Constitutional Court Order No. U-I-346/05, dated 4 October 2007. The choice of a system that ensures the influence of an individual voter on the allocation of seats to the candidates in a different manner and perhaps also to a greater extent, is a question of the appropriateness of statutory regulation and a political question par excellence (cf. paragraph 33 of the reasoning of the majority Decision). The Constitutional Court must – also in accordance with the principle of judicial self-restraint that is known in all countries wherein the principle of the separation of power applies – leave the assessment of the greater or lesser political fairness and appropriateness of one or another electoral system to parliament.[9]
 
Conclusion.  According to the Constitution, the majority of the judges of the Constitutional Court controls the meaning of the text of the Constitution (cf. the first sentence of the third paragraph of Article 162 of the Constitution). Also in the case at hand, the Constitutional Court decided on the meaning of one of the requirements stemming from the fifth paragraph of Article 80 of the Constitution, which was crucial for the decision in Point 1 of the operative provisions of the Decision, by a majority vote. However, the rule that the Constitutional Court decides by a majority vote of all its judges (the first sentence of the third paragraph of Article 162 of the Constitution) does not entail that the Constitution belongs to the constitutional judges and that they may therefore interpret it at will. Constitutional law does not merely concern the meaning of the provisions of the Constitution and the counting of judges’ votes that support one or another meaning of a constitutional provision that is subject to interpretation. The process of searching for and uncovering the path that has led to the determination of that meaning is also a part of it and thus subject to reasoning by means of constitutional arguments. I am convinced that the majority Decision has consistently construed these arguments. Therefore, I voted for the Decision. I would like to conclude with the thought that the majority resisted the temptation to cross the Rubicon in the name of searching for a regulation of the electoral system that would allegedly be fairer and more appropriate.
 
 
 
 
                                                                                              Dr Dunja Jadek Pensa
                                                                                                          Judge
 
 
 
[1] I thus will not assess this allegation from the perspective of the applicant’s evidently erroneous conclusion that only a statutory regulation that would enable every electoral district to have an elected deputy, thereby taking into account the number of votes obtained, could be consistent with the constitutional requirement under the fifth paragraph of Article 80 of the Constitution that “voters have a decisive influence on the allocation of seats to the candidates.” Such could namely only be achieved within a majority electoral system, which is contrary to the requirement under the fifth paragraph of Article 80 of the Constitution that deputies are elected according to the principle of proportional representation (cf. paragraph 27 of the reasoning of the Decision).
[2] Cf. Order of the Constitutional Court No. U-I-214/00, dated 14 September 2000, OdlUS IX, 201, paragraph 11 of the reasoning.
 
[3] Rolls of confirmed lists of candidates are published no later than 15 days prior to the election day (cf. Article 61 of the NAEA); notices indicating the rolls of lists of candidates also have to be put up at the polling stations (cf. the fourth paragraph of Article 64 of the NAEA).
[4] The reply to the question of the extent to which, within the regulation of elections to the National Assembly, an individual candidate’s virtues are intertwined with or highlighted by the complex of political preferences that are personified by all the candidates on the confirmed lists of candidates far exceeds the legal dimensions of the regulation of the electoral system.
[5] If the Supreme Court of the United States of America encounters a new domain, it nearly inevitably commences with the text. Taken from M. Tushnet, The United States: Eclecticism in Service of Pragmatism, in: J. Goldsworthy (Ed.), Interpreting Constitutions: A Comparative Study, Oxford University Press, Oxford 2006, p. 48.
[6] With regard to the usual methods of interpretation of the German Basic Law before the German Federal Constitutional Court, cf. D. P. Kommers, Germany: Balancing Rights and Duties, in: J. Goldsworthy (Ed.), Interpreting Constitutions: A Comparative Study, Oxford University Press, Oxford 2006, pp. 196–201. In my understanding, these are exactly the same as follow from the reasons of the majority decision.
[7] Gazette of the National Assembly, No. 52/2000.
[8] Ibidem.
[9] Cf. Constitutional Court Order No. U-I-128/92, dated 27 October 1992 (Official Gazette RS, No. 53/92, and OdlUS I, 75).
 
 
U-I-32/15-63 
30 November 2018
 
 
 
 
 
Partly Dissenting and Partly Concurring Opinion of
Judge Dr Etelka Korpič – Horvat
 regarding Decision No. U-I-32/15, dated 8 November 2018
 
 
I did not agree with the majority decision that the second paragraph of Article 91 of the National Assembly Elections Act (Official Gazette RS, Nos. 109/06 – official consolidated text, and 23/17 – hereinafter referred to as the NAEA) is not inconsistent with the Constitution. The provision refers to the election of the deputies of the National Assembly (Point 1 of the operative part).
 
1. It was the task of the Constitutional Court to define the open-textured legal term contained in the fifth paragraph of Article 80 of the Constitution – i.e. the decisive influence of voters on the allocation of seats to the candidates – and, following the definition of this term, to decide whether the second paragraph of Article 91 of the NAEA is consistent with the Constitution. I believe that the Constitutional Court failed to sufficiently define the mentioned term as regards its substance.
 
2. There are different models of proportional electoral systems and I agree with the majority position that the choice of a concrete electoral system, including the manner of the personalisation of deputy seats, falls within the legislature’s margin of appreciation, subject to the boundaries set by the constitutional requirements (paragraph 44 of the reasoning). The Constitution requires the legislature to take into account the following when determining the electoral system for elections to the National Assembly: (1) a proportional electoral system, (2) a four-percent electoral threshold, and (3) that voters have a decisive influence on the allocation of seats to the candidates. Therefore, when reviewing whether the regulation of elections in the NAEA satisfies the constitutional requirements, the Constitutional Court should have clearly defined the open-textured term the decisive influence of voters and concretely determined the voters who are to have such decisive influence. The Constitutional Court has defined open-textured legal terms on a number of occasions.[1] In the case at issue, however, I believe that the majority contented itself with a general definition and did not decide on the intensity of voters’ influence that would be required in order to deem such to be decisive and in what manner it should be expressed within the electoral process. It follows from the Decision that any influence of voters, no matter how insignificant or indirect, satisfies the requirement stemming from Article 80 of the Constitution.
 
3. The reasons why I believe that the challenged regulation does not satisfy the requirement of a decisive influence of voters in accordance with the fifth paragraph of Article 80 of the Constitution follow from the manner of casting a vote determined by the NAEA. Voters cast votes by circling the serial number in front of the name and family name of the candidate they wish to vote for (Article 73 of the NAEA). In addition to the name of the candidate, the ballot paper also contains the logo of his or her party (i.e. the list). The NAEA determines that a voter may only vote for one candidate (Article 73 of the NAEA). The electoral committee determines how many votes individual candidates received. The president of the electoral committee proclaims the election result at a polling station (Articles 84–86 of the NAEA). According to the NAEA, voters thus choose among candidates. The NAEA does not determine that voters also choose among lists. It is, however, true that many voters wonder who they are casting their vote for: the candidate or the party (i.e. the list). The electoral commission deems that a voter does not cast his or her vote only for a candidate but also for his or her list. It remains open what the voter’s true will was when he or she circled a serial number on the ballot. It remains open whether the voter wanted to give his or her vote exclusively to the candidate or to the list as well. It is unlikely that all voters wanted to give their vote to both the candidate and the list under the serial number which they circled on the ballot. What the true will of the voters had been cannot be established.[2] Regardless, the majority accepts: “When a voter circles the serial number in front of the name and family name of a candidate, he or she casts a vote for that candidate and thereby inevitably also for the list of candidates that the candidate belongs to” (paragraph 37 of the reasoning). In doing so, the majority refers to the ballot paper, which also contains the names of the lists of candidates (the third and fourth indents of the second paragraph of Article 73 of the NAEA). Therefore, although the NAEA determines that a voter only chooses a candidate, due to the fact that the ballot paper also contains the names of the lists of candidates, the voter automatically also chooses a list. I believe that such entails a forced electoral choice.
 
4. The personalisation of a list of candidates (i.e. the allocation of seats to the candidates) is determined at the constituency level, where the shares of votes obtained by candidates in the electoral district wherein they stood for election are taken into account (the second paragraph of Article 91 of the NAEA). Therefore, deputies are elected at the constituency level by means of seats being allocated to them. A voter cannot choose between candidates on a list (i.e. a party’s candidates) in a constituency. A voter chooses one candidate in relation to the other candidates in an electoral district, which, however, is irrelevant for the personalisation of a list’s seats. A voter does not have a choice between the candidates within a list of candidates. I therefore believe that the result of an election cannot reflect a decisive influence of voters. Such is also confirmed by the results of the elections to the National Assembly in 2014. The applicant states that more than half of the deputy seats were allocated to candidates who obtained fewer votes in the electoral district wherein they stood for election than [some of] the candidates they competed against.[3] Moreover, doubt as regards the existence of a decisive influence of voters was raised by the statements of the legal experts from the field of electoral law at the public hearing. Prof. Grad said it was a matter of assessment whether a decisive influence of voters on the allocation of seats to candidates is ensured.[4] Prof. Toplak is of the opinion that the existing system ensures voters an influence, but such is not decisive.[5] Prof. Zagorc stated that such entails a very minimal manner of ensuring that voters have a decisive influence.[6]
 
5. In paragraph 39 of the reasoning, the majority states that the decisive influence of voters entails the collective influence of voters, which excludes the direct influence of the proposers of the lists, and that the challenged statutory regulation ensures such an influence of voters. Proposers of lists (i.e. as a general rule, political parties) allegedly do not have a decisive influence on which of their candidates will become a deputy in the National Assembly. Their influence allegedly entails merely the determination of the electoral district in which individual candidates will stand for election, while they can only make a guess regarding the electability of the candidates. I assess that the proposer’s influence (i.e. as a general rule, political parties) is important as the proposer determines the candidate who is forced upon the voter, who cannot choose between candidates from the same political party. This is also confirmed by the statements of the director of the National Electoral Commission, Dušan Vučko, at the public hearing that “within the political parties there is fierce competition concerning which deserving member of a political party will stand for election in which electoral district. This is nothing new. In Slovenia, voters’ preferences are so varied and so typical that we can predict the composition of the [National] Assembly by up to 60 percent.” Therefore, I did not agree with the positions of the majority that the collective influence of voters excludes the direct influence of the proposers of the lists. The position of the majority that the proposer does not have a direct influence on the allocation of seats is insufficient. The fifth paragraph of Article 80 of the Constitution does not determine the influence of proposers of lists, but rather the decisive influence of voters on the allocation of seats to candidates. However, the majority failed to sufficiently define such.
 
6. The majority’s references to the teleological and historical interpretations are, in my opinion, also not convincing (paragraph 40 of the reasoning). Upon the introduction of the new fifth paragraph of Article 80 of the Constitution, the Constitution framer abolished national lists and upheld personalisation by means of consideration of candidates’ relative success in electoral districts. The NAEA was amended in 2006. Section II of the CA80, which had been adopted in 2000, was transposed into it. National lists were abolished and the Droop quotient replaced the Hare quotient in the allocation of seats; however, I believe that such did not achieve constitutional consistency in the sense that voters have a decisive influence on the personalisation of seats. Due to the change as regards the quotient, the influence of voters on the allocation of seats is neither more nor less decisive. Ensuring the consistency of the regulation of elections with the fifth paragraph of Article 80 of the Constitution would also require conceptual changes (electoral districts, the manner of voting).
 
7. The majority further stated that the Constitution framer did not envisage additional consolidation of the NAEA with the fifth paragraph of Article 80 of the Constitution, as it did not set a deadline by which such amendments to the NAEA would have to be enacted, but determined that the provisions would apply “until the enactment of amendments to the NAEA.” I believe that this statement is not convincing as it is not unusual for laws to announce amendments without also determining a deadline for such. In a state governed by the rule of law, the legislature is expected to observe a written legal provision. In any event, I deem the decision to not set a deadline for the enactment of amendments to the electoral law to be an expected one considering the importance of the regulation of the electoral system in a democratic society, which requires an unpredictable amount of time for numerous discussions and reconciliation.
 
8. In light of all of the above, I believe that an answer to what constitutes a decisive influence of voters on the allocation of seats to the candidates according to constitutional case law cannot be found in the Decision, and therefore I did not vote for Point 1 of the operative provisions of the Decision.
 
9. I voted for Points 3 and 4 of the operative provisions – i.e. that Article 4 of the Act Establishing Constituencies for the Election of Deputies to the National Assembly (Official Gazette RS, No. 24/05 – official consolidated text – AECEDNA) is inconsistent with the Constitution and that the National Assembly must remedy the established unconstitutionality within a period of two years following the publication of this Decision in the Official Gazette of the Republic of Slovenia. Districts are not essential for a constitutionally consistent proportional electoral system because they are not necessary and, as votes are counted at the level of electoral districts, can be misleading for voters, who expect that every district will have its own representative in the National Assembly. The size of electoral districts would be negligible if the personalisation of the allocation of seats to lists of candidates were not based on the shares of votes that candidates obtain in the electoral district wherein they stand for election. In my assessment, these shares are not a constitutionally consistent basis for the personalisation of seats of lists of candidates due to the reasons I have stated. Nevertheless, I did not vote against the proposed decision concerning electoral districts because voters vote in electoral districts and it is therefore right that voters and candidates [in all districts] are in an equal position.
 
10. Perhaps the legislature itself will also recognise that the time has come to amend the electoral system in order to ensure that voters have a decisive influence on the formation of a successful National Assembly and Government and in so doing increase interest in a higher voter turnout in elections to the National Assembly.
 
 
 
 
 
Dr Etelka Korpič – Horvat
    Judge
 
 
 
 
[1] The Constitutional Court did so in Case No. U-I-266/96 regarding voting on numerous proposals on a single ballot paper, in Case No. U-I-12/97 when reviewing the constitutional consistency of Article 3 of the Act on the Manner of Voting and on the Establishment of the Outcome of the Referendum Vote on the Electoral System, etc.
[2] Janez Pogorelc stated the following: “The majority of voters choose a party first and they would then also like to have some say as to which of the candidates from that list will get elected. If they have to choose between a party and a candidate, the decision regarding the party will practically always prevail.” (J. Pogorelc, Odločilni vpliv volivcev na dodelitev mandatov kandidatom [The decisive influence of voters on the allocation of seats to candidates], Podjetje in delo, Nos. 6–7 (2009), p. 1772).
In addition, during the public hearing, Jurij Toplak stated that a voter does not have the possibility of choosing within a party. A preferential vote is forced on him or her. A voter casts his or her vote for a list and is then forced to also vote for the exact candidate from this list who happens to be standing for election in his or her district ([from the transcript of the] magnetic tape recording of the public hearing in Case No. U-I-32/15 on 7 November 2017, p. 22).
[3] 46 deputies did not come in first place according to votes obtained (20 came in second, 14 in third, 8 in fourth, and 4 came in either fifth, sixth, or seventh place).
[4] [The transcript of] the magnetic tape recording of the public hearing in Case No. U-I-32/15 on 7 November 2017, p. 16.
[5] Ibidem, p. 12.
[6] Ibidem, p. 20.
 
 
Number:    U-I-32/15-64 
Date:          6 December 2018
 
 
 
 
 
Concurring Opinion of Judge Dr Jadranka Sovdat
regarding Decision No. U-I-32/15, dated 8 November 2018,
joined by Judge Dr Marijan Pavčnik
 
 
I
 
1. The electoral system is one of the fundamental elements of any constitutional order. It establishes the mechanism that enables the effective exercise of state power. In a democratic state, such is vested in the people and they decide on who shall exercise it in their name precisely through elections. As it is namely unimaginable that the people would directly do so always and in all areas, the electorate elects its representatives.[1] The right to vote for representatives who exercise power in the name of the people has developed into one of the fundamental political-human rights and belongs to every individual as a personal right, but can only be exercised by all voters together in an organised election process. It is important that this happens at regular intervals, as such enables the responsibility of the elected bearers of power to the people to be continuously upheld.[2] Any electoral system must be built in such a manner that respect for the six fundamental electoral principles is ensured (i.e. universal, equal, free, secret, and direct suffrage, and the frequency of elections, which, as a general rule, are held at regular intervals). The Code of Good Practice in Electoral Matters prepared by the Venice Commission deems these principles to be part of the European electoral heritage. They must be considered when regulating the right to vote and the electoral system as a whole as well as during exercise of the right to vote at every election. The right to vote and the principles underlying its regulation form part of the essential elements of any electoral system. This also includes the definition of the rules according to which the votes of the voters are translated into the allocation of seats to the elected bearers of power, which is also referred to as the electoral system in the narrower sense; such allocation is closely linked to certain other elements, such as the size of the constituencies, the number of deputies to be elected in each of them, and the electoral threshold.[3] We can also agree with the position that election results are not only an expression of the votes cast by the voters, but to some extent also an expression of the rules that apply to the organisation of the election.[4] How the elected representative body will be constituted and to what extent the effective exercise of state power will be ensured namely also depends on the electoral formula.
 
2. Throughout history, a considerable number of types of electoral systems have developed whose common characteristic is that the mentioned fundamental electoral principles apply to all of them. At the same time, they also differ from one another in a whole series of aspects, one of the differentiating features being the so-called degree of personalisation of elections, which is certainly greatest in variations of majority electoral systems and lowest in some pure variations of proportional electoral systems. In between lies a whole range of degrees of personalisation, including those in so-called mixed electoral systems. Nevertheless, none of them can be said to not respect the fundamental electoral principles and the very essence of the right to vote. The latter entails the free expression of the will of the voters regarding who shall exercise power in their name during the representative body’s next term of office.
 
3. Why do we need this insight into the very foundations of the electoral system as a whole? Because, when discussing the individual systems for the allocation of seats to the elected representatives – i.e. the electoral formula – we have to be aware of not only the constitutional law framework, but also the fundamental elements of elections. We must keep in mind under which rules, established in accordance with respect for all fundamental electoral principles, the elements of the right to vote are implemented and by which rules the electoral formula is established as a system. While it is true that to a certain extent they are mutually intertwined, it is also true that in some important aspects the elements of the electoral formula do not intrude on the very content of the right to vote. If they intruded on such (and in all instances), we namely would not have the range of different types of electoral formulas that have become established and have been functioning within democratic states during the last 100 years, as any discussion of their constitutional admissibility would end already at the point of their (in)consistency with the content of a human right. The Constitution framers and the legislature have the fundamental elements of elections in mind when they regulate the electoral system, and, within the framework of such, the electoral formula. Therefore, the constitutional judge must also keep them in mind when he or she is called upon to review whether the legislature regulated the electoral formula in a constitutionally consistent manner.
 
4. I have no reservations regarding amending the electoral formula, not even as regards fundamental changes to the type of formula used, including the adoption of a two-round majority electoral system, such as was also already proposed in electoral referenda.[5] It is interesting that some simplistically imagine that copying the electoral system of another country will produce the same effects on electoral results, society, and the political life within it as within a system where it has already been functioning for a longer period of time.[6] From the perspective of constitutional law, the choice of electoral formula is, in principle, a political decision and in making that choice the legislature, provided such choice is left to it by the Constitution framers, enjoys a wide margin of appreciation. Electoral legislation and thus also the regulation of the electoral formula is therefore only limited by the fundamental electoral principles. Until 2000, when certain elements of the electoral formula were introduced into the fifth paragraph of Article 80 of the Constitution, such had also applied in Slovenia. However, once the Constitution framers decide to regulate the electoral formula or certain of its elements, the legislature becomes bound by the constitutionally determined framework. The legislature’s margin of appreciation, which is political, is then narrowed to that which is left to it by the Constitution. It may not cross the constitutionally imposed limits, as such would entail unconstitutional conduct. When reviewing the constitutionality of such statutory regulation, the Constitutional Court must ensure, in accordance with the principle of the separation of power, that the legislature does not cross these constitutional limits. However, as long as the legislature remains within them, the Constitutional Court must not encroach on the margin of appreciation that, despite partial constitutionalisation, remains reserved for the legislature’s political decision-making. The Constitutional Court thus may not interfere with the choice of one or another electoral formula made within the constitutional framework.
 
5. I believe that, when interpreting the Constitution and assessing the consistency of an electoral law with such, the Constitutional Court must proceed from the outlined starting points. On the basis of such, I concur with the reasons due to which the Constitutional Court established that the statutory regulation of the electoral formula currently in force does not contradict the requirements or, more precisely, that it does not contradict the constitutional requirement that states that voters shall have a decisive influence on the allocation of seats to the candidates (Point 1 of the operative provisions of the Decision). The review of consistency with the fifth paragraph of Article 80 of the Constitution was namely requested and conducted only in this regard, although this constitutional element cannot be considered separately, especially from the perspective of the constitutional requirement of a proportional electoral system. In this connection, it does not appear important to me whether one requirement is defined as primary and the other is thus ensured within its scope[7] or whether it is stressed that the two requirements are not mutually exclusive.[8] In any event, they have to co-exist, insofar as their co-existence is concurrently enabled by the nature and characteristics of one or the other requirement. Alongside the reasons contained in the Decision that are a response to the applicant’s allegations, which are not particularly clear from the perspective of elections, I would also like to clarify my view of the constitutional review at issue, namely in this key point of the Decision as well as also regarding some other parts of the Decision and the Order (Point 5 of the operative provisions), which I also concur with.
 
 
II
 
6. Firstly, regarding taking a position on the alleged unconstitutionality of the fifth paragraph of Article 80 of the Constitution. Had it namely become clear that we were concerned with a so-called unconstitutional constitutional amendment, any further discussion of the constitutionality of the statutory regulation would have ceased as immaterial. It was necessary for the Constitutional Court to carry out the same review already immediately after the enactment of the mentioned constitutional amendment. The Constitutional Court took a position on such by Order No. U-I-214/00, dated 14 September 2000 (OdlUS IX, 201). In the case at hand, other than having repeated the request for a review of the constitutionality of the constitutional provision, the applicant submitted no reasons, even less so from the field of constitutional law, that would have required the Constitutional Court to change its position adopted in the cited Order. Therefore, in my opinion, the reply of the Constitutional Court is completely justified. It clearly follows already from Order No. U-I-214/00 that the Constitutional Court is not competent to review the constitutionality of a constitutional amendment as such. Two questions, which the Constitutional Court could not answer as it rejected the request in this part, may arise in this regard. A constitutional judge, however, may tackle them in his or her separate opinion. One of them concerns the content of the allegation raised, and the other the relationship between the Constitutional Court and the legislature. As regards the alleged thwarting of the will of the voters as expressed in the legislative referenda, following a request of the Slovene Government, the Venice Commission replied by way of an opinion soon after the cited Constitutional Court Order was adopted. It stated that there was no conflict between the decision adopted by referendum and the constitutional amendment, as the constitutional amendment prevails over the decision of a ‘preliminary’[9] legislative character adopted in the referendum.[10] It further substantiated why the constitutional amendment was not in conflict with European democratic standards.[11] That the Constitution framers are not legally bound by the will of the voters as expressed in a legislative referendum seems logical to me. The political responsibility of the deputies to the voters in such an instance is, however, debatable, although voters in fact always have the last say on such in the next election.
 
7. The situation in 2000 concerned not only the question of respect for the will of the voters as expressed in the legislative referendum and the constitutional amendment. Due to Constitutional Court Decision No. U-I-12/97, dated 8 October 1998 (Official Gazette RS, No. 82/98, and OdlUS VII, 180), it also directly concerned the relationship between the constitutional judicial branch of power and the legislative branch of power. By Decision No. U-I-12/97, the Constitutional Court namely decided not only on the constitutionality of the law in question, but it also assumed the competence of the referendum judge[12] and proclaimed a different[13] outcome of the referendum according to which the legislature should have enacted a majority electoral system. It thus concerned in some manner the fundamental relationship between two central stakeholders within the principle of the separation of power. In accordance with that principle and the principles of a state governed by the rule of law that oblige it to respect Constitutional Court decisions, the legislature must follow the decisions of the Constitutional Court. In this country, it has become commonly accepted that we have an entire list of Constitutional Court decisions establishing unconstitutionalities of laws to which the legislature has (thus far) failed to respond despite the expiry of the deadline set by the Constitutional Court for so doing. However, such is not only wrong, but also untenable, as it entails a grave violation of fundamental constitutional principles, which the Constitutional Court has stressed on numerous occasions. In fact, it entails a severe anomaly in the legality of the functioning of our state that should be remedied as soon as possible and no longer allowed in the future. From the perspective of constitutional law, it goes without saying that the legislature must respond to each and every Constitutional Court decision. Only the question of the extent of its room for manoeuvre when responding within the constitutionally established system of checks and balances may be raised – i.e. to what extent and in what manner it may enter into a constitutional law dialogue with the Constitutional Court. It is namely completely clear that at the outset we are dealing with the relationship between two equal branches of power – the legislature and the constitutional judiciary, whereas with regard to a constitutional amendment – i.e. the Constitution – such is no longer the case, as the Constitution binds both of these branches of power.
 
8. In my opinion, the situation wherein the legislature transforms into the Constitution framer when responding to a Constitutional Court decision and outdoes the Constitutional Court by adopting a constitutional amendment is clear. As a general rule, it must be allowed to do so, albeit not without limits. Unless it does so, it must respect the Constitutional Court decision and ensure by means of a law that the established unconstitutionality is remedied, as the disputes on which the Constitutional Court is called to decide can only be resolved by an authoritative decision in such manner.[14] What are the legislature’s limits if it chooses a constitutional amendment? Hitherto, the Constitutional Court has not encountered a case wherein it would have had to reply to the question of whether the legislature abused the power to frame the Constitution by placing into the Constitution a regulation that by its nature would undoubtedly and evidently only possess the quality of a statutory law merely in order exclude the possibility of its constitutional review sometime in the future. The Constitutional Court could not allow such an abuse, which surely entails the first such limit. In addition, it has to be taken into account that human rights and fundamental freedoms are regulated not only by the Constitution, but also by numerous international instruments, which due to the fifth paragraph of Article 15 of the Constitution are deemed to be on a par with the constitutional level. The Constitution must give them precedence whenever it protects an individual human right or fundamental freedom to an extent that does not reach that accorded by the international instrument. This is already the second limit, as any such constitutional amendment would in fact be immaterial, as from a constitutional law perspective the treaty regulating the relevant right or freedom would in any event prevail. In addition, the question of a so-called eternity clause could arise, although, in contrast to some other (e.g. the German or Czech) constitutions, such is not expressly regulated by the Slovene Constitution, but it might potentially be inferred from the values written into the Preamble in connection with the fundamental constitutional principles. Even if the legislature responds to a Constitutional Court decision by transforming into the Constitution framer, it must nevertheless consider certain constitutional limits. However, in my opinion, the amendment of the electoral formula from 2000 cannot be included in any of those categories.
 
9. A specific question could be raised in the case of the establishment of the referendum result as adopted by the Constitutional Court, as that decision was in fact not adopted in a procedure for the review of the constitutionality of a law. It was adopted within a referendum dispute procedure, which was not even regulated at the time, and according to the regulation currently in force the Supreme Court would be competent to adopt such a decision. Therefore, there might even arise the question of whether in this regard such truly entails an element of the fundamental relationship between two central branches of power, which, in my opinion, must be governed by the outlined rules. However, this question does not have to be answered. I namely see no reason to doubt Order No. U-I-214/00 on the basis of an application by a privileged participant in proceedings – i.e. a so-called institutional applicant – who failed to submit a substantiation of the reasons underlying the alleged unconstitutionality or the reasons due to which the Constitutional Court should reassess the positions it had already adopted regarding the same question.
 
10. In the same breath, the applicant aims substantively the same allegation against the constitutional as well as statutory regulation. It namely claims with regard to both that they determine the predominance of political parties and limit the ability of the people to actually exercise power. If this allegation were true at the constitutional level, the allegation of the unconstitutionality of the statutory regulation would naturally not be justified, as it would implement precisely what the Constitution dictated. What is more, elections do not entail the actual exercise of power (such as, e.g., a referendum with binding effect), but are a mechanism by means of which the people – i.e. the voters – decide on who shall (actually) exercise power in their name. Once the possibility of discussing the constitutionality of constitutional amendments has been laid aside, by means of a benevolent interpretation, the applicant’s allegations can be understood in connection with the allegations aimed at the statutory regulation of the electoral formula, which taken together with its connected elements is allegedly regulated in such a manner that political parties, and not the voters, are the ones who have the decisive say in the allocation of seats to the candidates (paragraph 24 of the reasoning of the Decision).
 
 
III
 
11. I concur with the reasoning that, if voting concerns lists of candidates,[15] the constitutionally enacted requirement “with due consideration that voters have a decisive influence on the allocation of seats to the candidates” does not concern the question of how many seats an individual list of candidates will obtain in an individual constituency, but the question of who has an influence on which of the candidates from a list of candidates will obtain a deputy seat. The electoral formula is in any event regulated by legal rules, but what remains at issue is whether they have been formulated in such a manner that the final word on the decisive question lies with political parties and other proposers of nominations or with the voters. In my opinion, there is no third actor who could decide on such. And the applicant also claims: the political parties decide.
 
12. Before I delve into this central question, I would like to offer a few thoughts on whether this constitutional requirement also extends to the question of who has the right to nominate candidates, i.e. the nomination stage of elections. I concur with the position from the Decision that it does not. Following the clarification by the Constitutional Court that the right to nominate candidates is a part of the active right to vote, it is clear that such is exercised by the voters – whereby they may do so directly (so-called individual nominations) or by organising into political parties. When a political party nominates candidates from its own ranks according to a democratically regulated procedure, such also entails the exercise of the active right to vote. Political parties are important for democratic processes, especially elections. In contrast to some other constitutions, our Constitution does not expressly regulate the basis of their activities. Such is surprising, as the introduction of political pluralism, with political parties being the central element of such, was one of the fundamental requirements during the establishment of our independent democratic state. Political parties are an expression of the right of assembly and association, which is a human right. It also includes the right to establish political parties. That right is, in the words of the Constitutional Court, the foundation of a multi-party political system, without which no free democratic society can exist.[16] Political parties are thus constitutionally protected. Due to their significant role in the struggle for power and the exercise of (legislative and executive) power, elections are practically inconceivable without them.[17] The fundamental rules according to which political parties nominate candidates are regulated by the electoral law, which may also enact restrictions regarding such. The decision on which nominations or lists of candidates a political party is going to submit in which constituencies is of course always left to the party. Anyone who believes that this does not apply to majority electoral systems is wrong. It remains an open question whether a political party’s central bodies or its local bodies[18] have a greater say in such, which can to a certain extent depend on the elements of the electoral formula, including the organisation of constituencies and their potential further division, which also applies in other legal orders. Legislation could surely significantly restrict political parties if it required that only a candidate with permanent residence in the territory of an electoral district can be nominated to stand for election in that district. Such would decrease the possibility of political parties speculating regarding the positioning of individual candidates based on their chance of being elected. However, there is no doubt that political parties would also adapt to such rules.[19] They always adapt, which is only natural and may be observed in other countries following amendments to the electoral formula at issue, which may be triggered precisely due to political parties’ speculations regarding the “benefits” such might bring them.[20] This question was not in fact the subject matter of the review in the case at issue, as no statements were made in this respect. Ultimately, the Constitution clearly speaks of the allocation of seats to the candidates. And the candidates are the ones who obtained the passive right to vote with the registration of their nomination following the nomination procedure of the election, i.e. at the very beginning of the electoral race, in order to enable such to take place. However, even this is an illustrative indication of how intertwined election rules are, and therefore caution is required when we establish causal relationships and attribute specific consequences to (merely) individual reasons. 
 
13. Returning to the central theme, we must first raise the question of whether this constitutional requirement is an element of the right to vote or an element of the electoral formula as a system. If we reply one or the other, we are namely not dealing with the same legal situations. I agree with Professor Zagorc, who stressed at the public hearing that it must be regarded as an objective element of the electoral formula intended to ensure a decisive influence of voters as a whole, and not of a single voter. Such is also the basis of the reasoning in the Decision. I would say that it does not entail an element of the right to vote itself. If that were the case, this requirement would have to apply in each and every electoral system. The requirement of the personalisation of elections would then entail a part of the content of the right to vote, as it would be considered within the framework of the voter’s free expression of his or her will regarding whom he or she intends to give his or her vote. It would thus be a necessary element of the active right to vote. As a result, almost all variations of the proportional electoral system would probably constitute an interference that restricts the content of the right to vote, not only from the perspective of equal suffrage, but from the perspective of universal suffrage itself.[21] Already due to the very existence of variations in majority electoral systems, I cannot imagine that any proportional electoral system could pass a constitutional review if put to the test of constitutional admissibility and proportionality, which we use to review the admissibility of an interference with a human right. As human rights are by their nature universal, such would have to apply in all democratic countries.
 
14. Considering the requirement of the personalisation of elections as an element of the right to vote would also negate that the choice of electoral system – i.e. the electoral formula – is an essentially political question. From the perspective of constitutional law, even the Constitution framers would be restricted. We are in fact not dealing with the question of the legal nature of the right to vote, as in each and every electoral system this right is a personal right that can only be exercised in a collective manner, which applies not only to the active right to vote but also to the passive right to vote.[22] Instead, we are dealing with the question of how the expression of the will of the voters should be organised (constituencies, the number of deputies elected in each unit[23]), and whether a vote cast by a voter entails a so-called exclusive candidate vote or whether it entails a vote for the candidate and concurrently also a vote that is counted together with other votes (a so-called nonexclusive candidate vote) or whether and to what extent it is (concurrently) transferred into a vote for the list.[24] None of the mentioned electoral formulas can be said to produce an interference with the right to vote as such, even less so an inadmissible interference with the right to vote. We must thus agree that the greater or lesser personalisation of elections is an (objective) element of the electoral formula as a system, and not of the content of the right to vote. Therefore, from the perspective of whether personalisation exists or not, a review of the consistency of the electoral formula with the right to vote as such is irrelevant. It would be relevant if a decisive influence of voters on the allocation of seats was required with regard to how the seats obtained on the basis of the votes cast by the voters, which are a credible reflection of their freely expressed will, are allocated to the individual candidates. It is relevant whether the electoral formula is regulated in such a manner that this is decided on by the voters and not (already in advance at the moment of nomination) by political parties (i.e. the proposers of the candidates).
 
15. We are dealing here with a regulation that is based on lists of candidates – lists of candidates are namely registered for the electoral race – while at the same time the electoral units are divided on two levels, i.e. constituencies and electoral districts, and the proposers of the lists of candidates are required to divide the individual candidates from the list among the electoral districts. A voter votes for an individual candidate and concurrently for the list of candidates which that candidate belongs to. I believe that such clearly follows from the statutory regulation and it is not proper if, due to an incomplete reading of the statutory provisions, we underestimate the voters by deeming that they do not know this. Such an electoral system has been in force already since 1992. Once the votes have been cast, no deputy can be elected only on the basis of the votes the voters cast for him or her as an individual candidate from a list of candidates in an electoral district. The candidate is in fact elected on the basis of all the votes cast for the list in all the electoral districts. If only the votes of the voters in a single electoral district counted, the list could not obtain any seats at all (in the constituency). Therefore, I take no issue with this regulation from the perspective of equal suffrage. There would be an inequality if only the votes cast for individual candidates in the electoral districts were considered in isolation. However, as I have stressed, none of the candidates could be elected on the basis of these votes. If this were possible, candidates would in fact be elected in electoral districts and constituencies would become useless. However, as professor Grad stated at the public hearing, if deputies were elected in electoral districts, we would have a majority electoral system or an exclusive candidate vote system according to Cox, which is, of course, characteristic of majority electoral systems, and with regard to proportional systems, only for the single transferable vote system.[25]
 
16. In light of the above, the applicant’s statements that, as a result of proportional representation (i.e. a proportional electoral system), every electoral district should have an elected deputy and the equal distribution of deputies across the electorate should be ensured, in fact contradict themselves. The applicant actually claims that within the proportional electoral system we should have a majority electoral system. These two cannot be reconciled. Even if the legislature eliminated electoral districts and introduced open electoral lists with preferential voting and perhaps even panachage, such could not be achieved; likewise, it would not be possible to always ensure the equal distribution of deputies across the electorate. This could be achieved by introducing a majority electoral system, but such would be unconstitutional due to the fifth paragraph of Article 80 of the Constitution.
 
17. The central question is thus who has, according to the statutory rules currently in force, the decisive say on which of the candidates from a list of candidates will be allocated the seat that the list obtained in a constituency. As I have already stated, naturally such can only be attributed to two actors. The proposers of the lists of candidates, which as a general rule are political parties (I will refer to proposers as such hereinafter), or the voters. What is at issue is whether political parties, according to the statutory rules and after having determined the lists of candidates and divided the candidates among the electoral districts, retain any kind of influence on which of the candidates on the list of candidates will be allocated a seat. Such influence would be most evident in the case of voting only on lists, whereby the order of candidates on the list as determined by the political party would be considered, or in the case of the system of so-called national lists that was once in force, but it would also be retained in systems which determine what share of the seats obtained is allocated according to the order as determined by the political party and what share on the basis of preferential votes (e.g. as in Belgium). If, however, the statutory rules prevent a political party from retaining such influence in the mentioned ways or even introduce the express rule that seats are to be allocated to candidates from the same list according to the (relative) number of votes cast by voters for an individual candidate in an electoral district, it cannot be claimed that the political party has a decisive influence on such. Once the nominations have been set, who will be allocated a seat no longer depends on the will of the political party, but only on the will expressed by the voters. With regard to forms of preferential voting where the political party no longer has any influence in the stage of the allocation of seats, the political party’s influence also ends in the nomination stage. As within the challenged electoral system only one candidate from a list of candidates stands for election in each electoral district and seats are allocated according to the highest share of votes obtained in an electoral district, it is claimed that a competition among the candidates of the same list is created. However, precisely the same applies in all preferential voting systems, as (positive or negative) preferences within a list produce the same effects.
 
18. In light of the above, it cannot be claimed that in the challenged electoral formula voters do not have a decisive influence on the allocation of seats to individual candidates from a list of candidates. The allegation that the system in force is unconstitutional is thus also not substantiated from this perspective. It is clear that the legislature retains a political margin of appreciation regarding which of a number of possible variations of the proportional electoral system that ensure that voters and not political parties have a decisive say on the allocation of seats to the individual candidates it will enact.[26] In this respect, the legislature is the one who calls all the shots and must, therefore, also assume full responsibility for the consequences of the choice of electoral system for political and social life within the state in general. The Constitutional Court may not proclaim that the electoral system is unconstitutional simply due to the fact that the legislature has thus far not been willing to amend it.
 
19. With regard to the interpretation of the text of the fifth paragraph of Article 80 of the Constitution, some of my esteemed fellow constitutional judges had different views than those presented in the Decision, which I supported. However, none of them explained the reasons that would require that the teleological interpretation as follows from the travaux préparatoires for the constitutional amendment be rejected. Neither did the applicant. It is true that, at the relevant time, the competent commission held that the amendment to the Constitution “enables the introduction of all forms of proportional representation”. If we considered this statement by itself, we would of course have to conclude that it is not true. It is clear that this sentence must be read together with the remaining text, which very clearly states which variations of the proportional system it does not allow (see paragraph 43 of the reasoning of the Decision). It thus follows from a teleological interpretation of the constitutional provision that in enacting it the Constitution framers did not have the intention of enacting a new electoral system, but wanted to exclude certain elements of the system in force at the time in order to prevent political parties from having in advance an influence on which of the candidates will be allocated a seat. As no one provided reasons why this intention of the Constitution framers should be exceeded, I too may refrain from considering whether such would nevertheless be necessary. The applicant’s allegations that the system currently in force negatively affects political and social life cannot substantiate such. Should they nevertheless prove to be substantiated, they could serve as a valid political reason for amending the electoral formula, but of course within the constitutionally determined framework. Otherwise, the Constitution would have to be amended.
 
 
IV
 
20. I agree that within the legal order there exist two different, even conflicting legal rules on observance of the principle of equality as regards the electoral geometry of the electoral districts that cannot be interpreted in an unambiguous manner (Point 3 of the operative provisions). This conflict that results in legal rules being inconsistent to such an extent that it entails an inconsistency with the principles of a state governed by the rule of law must be eliminated from the legal order. However, in my opinion, this conflict already existed when the Constitutional Court first encountered this question. I believe, however, that differences in the size of the electoral districts do not interfere with equal suffrage, namely due to the manner in which votes for a list and the candidates on it are collected and whereon I have already expressed some opinions (paragraph 15 of this Opinion). In fact, the moment when the legislature should have also scrutinised the size of the constituencies from the perspective of equality (i.e. the electoral geometry) already occurred a long time ago. The demographic and other criteria that influence the drawing of the borders of constituencies have been changing over the years. Perhaps the unconstitutionality established in the case at issue, although it cannot of itself influence the key decision in this case from the perspective of constitutional law, will still lead to political reflections on the electoral formula as such. Even if the electoral districts were equal in size, in my opinion, that would not alter the fundamental understanding of the implementation of the constitutional requirement that voters have a decisive influence on the allocation of seats to the candidates.
 
21. I also concur with the outcome of the review of the allegations of unconstitutionality contained in Point 2 of the operative provisions. I would merely like to add some words of caution with regard to the first paragraph of Article 7 of the NAEA. Already a linguistic interpretation of this provision clearly leads to the content of the rule – the right to vote in individual elections is enjoyed by everyone who has attained the age of 18 years before the day of the election, i.e. those who are older than 18 years of age, and those who attain this age on the day of the election. It is evident that by means of the manner of implementation of the right to vote (the second paragraph of Article 15 of the Constitution) the legislature had to determine how (the executive authorities, already when drawing up the electoral registers, and) the electoral authorities shall implement the second paragraph of Article 43 of the Constitution.[27] In a way, the choice of the day of the election seems self-evident, as within the electoral process the day of the election, when all holders of the active right to vote express their will, is the most important aspect. Another reason to support such lies in the fact that in this manner the broadest possible circle of electors are enabled to vote. However, it should also be considered that the active right to vote can be exercised already before the day of the election – through nominations, the passive right to vote – e.g. when an individual obtains the right to stand for election by being included in a registered list of candidates. In this regard, in accordance with the first paragraph of Article 7 of the NAEA, the right to vote could also be exercised by persons who do not fulfil the requirement under the second paragraph of Article 43 of the Constitution. However, evidently, there have thus far been no issues in this regard, nor did the applicant even consider such, but simply aimed its allegation where, however, it must be deemed manifestly unsubstantiated in light of the possible interpretations of the relevant legal acts.
 
 
 
 
                                                                                   Dr Jadranka Sovdat
                                                                                              Judge
 
 
I am joining the Concurring Opinion of Judge Dr Jadranka Sovdat. The argument that “the legislature retains a political margin of appreciation regarding which of a number of possible variations of the proportional electoral system that ensure that voters and not political parties have a decisive say on the allocation of seats to the individual candidates it will enact” (note No. 26 appears at this point, which I have omitted) is of particular importance. It is also essential that the legislature is responsible “for the consequences of the choice of electoral system for political and social life within the state in general” (paragraph 18 of the Concurring Opinion).
 
 
 
 
Dr Marijan Pavčnik
Judge
 
[1] See B. Watt, UK Election Law, A Critical Examination, Glass House Press, London 2006, p. 11.
[2] This was nicely illustrated by Jambrek when he spoke of the uninterrupted chain of democratic legitimacy and of the responsibility corresponding to such that leads from the people to an authority and back. See P. Jambrek in: L. Šturm (ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske in državne evropske študije, Ljubljana 2002, p. 48.
[3] Cf. F. Grad, Volitve in volilni sistemi [Elections and Electoral Systems], Uradni list Republike Slovenije, Ljubljana 2004, pp. 53–54. What is meant is the formally enacted electoral threshold, not a so-called effective electoral threshold (regarding such, see A. Lijphart, Electoral Systems and Party Systems, Oxford University Press Inc., New York 1994, pp. 25–29, and M. Kasapović, Izborni leksikon, Politička kultura, Zagreb 2003, pp. 154–156).
[4] See R. Taagepera, S. Shugart, Seats & Votes, The Effect & Determinants of Electoral System, Yale University Press, New Haven 1989, pp. 2–6.
[5] It is commonly known that, e.g., in France the electoral formula for the election of deputies was changed nine times between 1871 and 1986; while the election in 1986 still took place according to a proportional electoral system, already the following year a two-round majority system was enacted once again; see O. Ihl, Le vote, Montchrestien, Paris 1996, pp. 54–58. 
[6] Regarding such, see, e.g., Cox, Making Votes Count, Strategic Coordination in the World's Electoral Systems, Cambridge University Press, Cambridge 1997, pp. 23–24.
[7] Prof. Zagorc at the public hearing.
[8] Prof. Toplak at the public hearing.
[9] Those were so-called a priori legislative referenda that were part of our legal order at the relevant time.
[10] Opinion on the Constitutional Amendments concerning Legislative Elections in the Republic of Slovenia, adopted by the Venice Commission at its 44th Plenary Meeting (13–14 October 2000), p. 3.   
[11] Ibidem, p. 4.
[12] For more regarding such, see Sovdat, Ali je v referendumskem sporu ustavnopravno kaj novega [Have there been any new constitutional developments regarding referendum disputes], Podjetje in delo, Nos. 6–7 (2018), pp. 1235–1236.
[13] According to the official result published by the National Electoral Commission, none of the proposed possible electoral formulas won in the referendum.
[14] Cf. J. Sovdat, Zavezujoča narava odločb Ustavnega sodišča [The Binding Nature of Constitutional Court Decisions], Podjetje in delo, Nos. 6–7 (2015), pp. 1377–1379.
[15] In light of the fact that the Constitution determines an electoral threshold, the question could arise whether it would be possible to introduce a variation of the proportional system wherein in constituencies individual candidates would stand for election instead of lists of candidates. In such case, the number of deputies to be elected in a constituency determines the type of system. If voters vote for candidates with the option of a single transferable vote in one constituency, such concerns an alternative voting system, which is a variation of the majority electoral system. If several (as a general rule 5) deputies are elected in a single constituency, the application of a system of voting by means of a transferable vote produces proportional effects, as in the case of the single transferable vote system. Such is in force, e.g., in Ireland, where voters vote for candidates and all seats are allocated to the individual candidates in constituencies according to the Droop quotient. It is, however, questionable if there is room for an electoral threshold in these systems, as such is not part of the legal orders where such systems are in place. For more on the electoral formula in Ireland, see M. Gallagher, Ireland: The District Charm of PR-STV, in: M. Gallagher, P. Mitchell (ed.), The Politics of Electoral Systems, Oxford University Press, Oxford 2008, pp. 511–532. 
[16] Held by the Constitutional Court in Decision No. Up-301/96, dated 15 January 1998 (Official Gazette RS, No. 13/98, and OdlUS VII, 98).
[17] Cf. F. Lanchester, Gli instrumenti della democrazia, Giuffrè Editore, Milano 2004, p. 84, and R. S. Katz, A Theory of Parties and Electoral Systems, The Johns Hopkins University Press, Baltimore 2007, p. 1.
[18] Regarding an electoral reform that aimed to intensify the personalisation of elections in the country where the proportional electoral system first developed, but in the end produced the exactly opposite effects, see L. De Winter, Belgium: Voters or Party Elites, in: M. Gallagher, P. Mitchell (ed.), op. cit., pp. 421–431.
[19] Such is nicely illustrated by the Belgian example; ibidem, p. 431. For more on this, see R. S. Katz, op. cit., pp. 117–119.
[20] Although such views may also entail excessive simplifications; see R. S. Katz. Why Are There So Many (or So Few) Electoral Reforms, in: M. Gallagher, P. Mitchell (eds.), op. cit., pp. 58–60 and 63–69.
[21] In a judgment by which it held for the first time that Article 3 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, No. 7/94 – the ECHR) protects the active right to vote and the passive right to vote as personal human rights, the European Court of Human Rights stressed inter alia the following: the Contracting States have a wide margin of appreciation regarding the choice of electoral system; electoral systems seek to fulfil objectives that are sometimes scarcely compatible with each other; any electoral system must be assessed in the light of the political evolution of the country concerned; features that would be unacceptable in the context of one system may accordingly be justified in the context of another, at least so long as the chosen system provides for the free expression of the will of the people in the choice of the legislature; see paragraph 54 of the Judgment in the case of Mathieu-Mohin and Clerfayt v. Belgium, dated 2 March 1987.
[22] See J. Sovdat Pasivna volilna pravica, kandidiranje in varstvo volilne pravice [The Passive Right to Vote, Nominations, and Protection of the Right to Vote], in: I. Kaučič (ed.), Ustavni položaj predsednika [The Constitutional Position of the President], Inštitut za lokalno samoupravo in javna naročila (Lex localis), Maribor 2016, pp. 151–152.
[23] See note No. 15.
[24] For more on this, see G. W. Cox, op. cit., pp. 40–48.
[25] See note No. 21.
[26] At the public hearing, Prof. Toplak mentioned the example of the electoral system in force in Latvia. I had a chance to become more closely acquainted with that system and I like it. It determines a five-percent electoral threshold in order to prevent the fragmentation of parliament and enables both a negative and a positive preferential vote by means of crossing a candidate off a list, which of course entails that the votes of the voters decide on the allocation of seats to the individual candidates, as they cannot only change the order of the candidates, but may even exclude a candidate who had been determined in advance by his or her political party. However, another system’s appeal cannot effect the unconstitutionality of the system in force, as long as also within such voters decide on the allocation of a seat to an individual candidate and such is not determined in advance by his or her political party.
[27] The electoral law in neighbouring Austria, e.g., determines 1 January of the year of the election as the decisive date. 
 
 
Number:    U-I-32/15-68 
Date:          30 November 2018
 
 
 
 
 
Partly Dissenting and Partly Concurring Opinion
of Judge Dr. Dr. Klemen Jaklič
regarding Decision No. U-I-32/15-56, dated 8 November 2018
 
 
 
The Unconstitutionality of the Slovene Electoral System
 
 
 
I The Violation of Equal Suffrage
 
1. I voted for Point 3 of the operative provisions – i.e. that Article 4 of the Act Establishing Constituencies for the Election of Deputies to the National Assembly is inconsistent with the Constitution. However, in my opinion, the challenged Article is unconstitutional due to reasons that are significantly simpler and less ambiguous than the reasons which the majority became entangled in when trying to avoid admitting that the country has a serious professional and political embarrassment.
 
2. The challenged Article enacted a severe violation of equal active suffrage. As regards the decision on the decisive question, i.e. which candidates from among the candidates competing with one another on a list of the same party in a constituency are to be allocated the seats obtained by that party in that constituency and which candidates are not to be allocated a seat, the Article at issue namely accords some voters one vote, while according others almost four (really!). Such an evident violation of equal suffrage is untenable in any country that declares itself, at least formally, to be democratic. Such a violation could also never pass the review of the Strasbourg Court regarding its consistency with equal suffrage (“one person, one vote”) as an element of the European Convention on Human Rights and it is likewise not consistent with the minimum common European standards in this field as defined by the European Commission for Democracy through Law (the Venice Commission).[1] What are we dealing with?
 
3. The decisive question – i.e. which of the candidates from the same party will, considering the number of seats the party has obtained at the constituency level, be going to the National Assembly and which of them will not – is decided at the level of electoral districts. From among the candidates from the same party, the candidate who obtained a higher share of votes than his or her competitors from the same party in other districts of the same constituency becomes a member of the National Assembly, and so on until the number of seats that the party obtained has been filled. The problem arises from the fact that, due to the challenged Article 4 of the law that allows such, electoral districts are not even approximately equal in terms of the number of voters, as in practice there are radical differences between districts! Thus, in the 2014 election, for example, the largest district had 3.73 times more voters than the smallest one. This entails that the vote of a voter from the smallest district counts 3.73 times as much as the vote of a voter in the largest district. In other words, as regards the choice of who among the competing candidates from the same party will obtain the concrete seat they are competing for, one voter has almost four votes while another has only one. This is a blatant – as well as shocking – violation of equal active suffrage that is without compare in democratic states and which should not occur in any such state, as a state that has enacted such a violation cannot be democratic. It namely fails to acknowledge a basic principle of the democratic order, i.e. that in elections every citizen – regardless his or her social, economic, sexual, racial, or any other status, such as, e.g., the place of residence – only has one vote (“one person, one vote”).[2] This blatant violation of the foundations of democracy, i.e. the right to vote as a fundamental human right, has persisted in Slovenia for more than twenty years. In the 21st century such is unacceptable and regrettably also disgraceful for a state that is allegedly a democratic republic.   
 
4. I understand the discomfort of the majority, which tried to avoid the disclosure of this evident and long-lasting violation. Experts who co-operated in the drafting of such an electoral system and allowed it to proceed through the political filter without criticism in this regard or who even proposed such a system failed the proverbial test along with the politicians.[3] It is also true that even the Constitutional Court itself already confirmed such a regulation as constitutionally consistent a few times in the past. However, it never did so on the basis of the argument I have just presented. Parties in previous proceedings before the Constitutional Court have always erroneously asserted[4] an inequality of suffrage in general, i.e. between the candidates from one political party in relation to the candidates from a different political party. Hitherto, the Constitutional Court has therefore found that there was no such inequality as in the electoral competition the number of seats is divided among the different parties at the level of the constituencies and, in contrast to electoral districts, these were approximately equal in size. There thus existed no violation of equal suffrage in terms of the choice between the candidates from different parties. However, up until the present case no party before the Constitutional Court (nor any member of the expert community as a co-author of the law) ever drew attention expressly to the argument of an inequality as regards the choice between the candidates from one and the same party which is made at the level of the radically unequal electoral districts. With regard to the choice of which of the candidates from the same political party will be given a place in the numerical quota of seats obtained by the party, the above outlined radical violation of equal suffrage has been mathematically proven.
 
5. That the violation is extremely serious can be explained already with basic knowledge of the constitutional limits and a comparative overview of this fundamental guarantee – i.e. equal suffrage or “one person, one vote”. Such a violation did not only persist for a long time, which raises doubts regarding the legitimacy of the compositions of the National Assembly up to the present moment (as a different composition certainly also entails the different rights that the respective representatives would accord us), but, in fact, it also entails a radical deviation from the constitutionally admissible limits of this principle. In the USA, e.g., one of the most consistent implementations of this principle has been in force since the 1960s; there, already the slightest deviations in the size of districts (i.e. even those amounting to one percent) are abrogated as violations of equal suffrage and found to be unconstitutional.[5] The Code of Good Practice in Electoral Matters prepared by the Venice Commission establishes the common minimum standards for European countries regarding this fundamental question. It prescribes that states have to consider specific circumstances, whereby the difference in the size of the districts may in exceptional instances amount to about 10 percent, but never to 15 percent, except in truly exceptional instances, such as, e.g., the protection of minorities.[6] In Australia, Belarus, Italy, and Ukraine, deviations of up to 10 percent are allowed,[7] whereby Australia has the additional limitation that a district may not deviate by more than 3.5 percent in a period of three years and six months following the new redistricting. In Germany and the Czech Republic, deviations in the size of districts up to 15 percent[8] are admissible, which is still deemed to be acceptable in the [legal] literature.[9] In 1944, the United Kingdom established the standard of 25 percent, which was invalidated only two years later. The rule currently in force there determines deviations not exceeding 5 percent.[10] We can thus see where Slovenia belongs with its deviation in the size of districts that amounts to 373 percent! In other words, as regards the decision-making on the above outlined question (i.e. the choice among the candidates from the same party), some voters have almost 4 votes, while others only have one. Such entails a radical, inadmissible, and evident unconstitutional violation of the fundamental democratic postulate of the equality of the right to vote as a human right – and it has persisted for over twenty years.
 
6. I understand that the majority wished to avoid this direct, shocking reason for the unconstitutionality of the Slovene electoral system and diminish the embarrassment by abrogating the challenged Article 4 on the basis of completely different (i.e. less compromising) arguments. However, at the same time, the majority was aware of the fact that there was no other way than to abrogate this Article. Otherwise, the Strasbourg Court would have effected its abrogation in its stead at the first opportunity on the basis of the now publicly known argument that I have outlined above without restraint and that, following my explicit question, the applicants have also confirmed as part of the basis of their statements at the public hearing. In contrast to the majority, I wanted to present the violation to the public without restraint as in my opinion the Constitution does not leave any room for the tactical attenuation of such shocking violations. The Constitutional Court adjudicates in the name of the people and for the people as the sovereign of the state. By what right would we then – albeit in order to protect the expert community, politicians, or the apparent legitimacy of the compositions of the National Assembly elected up to the present moment – keep them in the dark and not inform them that all these years their fundamental democratic right has been violated to such an extent and therefore the democratic quality of the Slovene state has not been realised? If, now that the violation has become known, the legislature wishes to avoid the condemnation of the electoral system in Strasbourg, it will have to remedy the unconstitutionality not only to the extent deceptively falsely communicated by the majority due to tactical reasons, but to such an extent that it will not violate the “one person, one vote” principle also at the level of the districts. The common minimum European standards regarding this question are completely clear and codified.
 
 
II The Violation of the Constitutional Requirement that Voters have a Decisive Influence
 
7. I voted against Point 1 of the Operative provisions – the regulation of the Slovene electoral system currently in force namely also does not satisfy the explicit requirement of the Constitution that voters have a decisive influence on the allocation of deputy seats. The legal term “decisive influence” can be understood in at least three basic ways that mutually supplement one another, but the electoral system currently in force satisfies neither of them and therefore also does not enable a decisive influence in accordance with the common meaning of all three aspects.
 
8. Firstly, it follows already from the above depiction of the violation of the principle of equal active suffrage that the allocation of a seat to one and not to another candidate from the same political party violates the [requirement of the] decisive influence of the voters, who decide on choosing among candidates competing against each other on the same list in radically larger districts. Voters from the smallest districts have a 373 percent greater influence than voters from the largest districts as regards which of the candidates from the same political party who compete against each other will be allocated a seat from the quota of seats that this party obtained in light of the overall number of votes it received at the level of the state. It is thus evident that in contrast to some voters other voters do not have a decisive influence on the allocation of seats within the same party, not even in terms of this first and most simple meaning of the term decisive influence, which measures the decisive influence of voters on the allocation of seats from the voter–voter perspective. In the relation of one voter to another, the first voter has a decisive influence on the allocation of seats while the other does not.
 
9. Secondly, the non-implementation of the requirement that voters have a decisive influence on the allocation of seats is equally evident if such influence is assessed from the voters–political party perspective. It follows from comparative constitutional law that there are electoral systems that leave the decisive influence on the allocation of seats to the political parties and systems that diminish such influence of parties by placing it in the hands of the voters instead. A comparative perspective demonstrates that as regards voters’ influence (rather than the influence of political parties or some other influence), the Slovene system is even one of the most restrictive systems.
 
10. In the [legal] literature, an essential aspect of the openness of an electoral system for voters to have an influence on the allocation of seats is measured by whether when casting a vote the voter can choose from among a number of candidates from the same political party or whether it is the political party itself that forced only one of its candidates into the district where the voter is voting and the voter thus cannot choose from among a number of candidates from the same party, but can only vote for the one who was placed there by the political party itself.[11] The following applies in the Slovene electoral system: the political party itself determines and therefore forces upon the voter a single candidate from its party. As a result, when voting on the allocation of a seat, the voter cannot choose from among different candidates from the same party! Therefore, we cannot speak of any kind of decisive influence of the voter on the choice from among different candidates from the same party. On the contrary, in electoral systems based on proportional representation throughout Europe, which I have carefully studied, such an influence of voters is ensured. In Austria, for example, a voter has the possibility to choose from among approximately 12 candidates from the same political party on the ballot paper, in Denmark from among about 7 candidates from the same political party, in Finland even from among 20, and in the Netherlands 30, while in Belgium the number varies between 4 and 22 candidates from the same political party.[12] A voter may choose by means of a preferential vote and vote for any of them. Those are systems that enable that voters have a significantly greater influence than the one enabled by the Slovene system, where a choice from among different candidates from the same political party is completely excluded. Already for this reason, it would thus be difficult to claim that, in comparison with other systems, our system – i.e. precisely the system that is the most rigid for the voter as it allows the political party to force the voter to vote for a single candidate – is one that enables a decisive influence of the voter (and not the party) on the allocation of seats.
 
11. How untenable such a position is becomes even more apparent when one learns that many European legal experts from the field of electoral systems complain of the fact that the influence of voters is frequently too small even in the outlined systems where voters may choose from among numerous candidates from the same political party and where political parties thus do not deprive the voters of such an influence by forcing upon them only one candidate per voting district, as is the case in our system. Lieven De Winter, an expert on the Belgian electoral system, thus observes that, at the time when their electoral system was introduced in 1919, voters made use of their preferential votes (i.e. their individual choice from among the candidates from the same political party) in 15 percent of the cases, and throughout the history of that system this has increased and today amounts to 60 percent or more.[13] As the author explains, it nevertheless happens that, due to various reasons in practice, the influence of preferential votes is too small, as, in addition to the preferential vote, the Belgian system also enables a voter to confirm an unaltered list of candidates as proposed by the political party (so-called alternative voting).[14] If 60 percent of the preferential votes of voters in practice do not suffice to define a system as one that ensures a decisive influence of voters, what would De Winter have to say about the Slovene system, which does not even provide for the precondition of such influence, i.e. that the voter could vote (i.e. cast a preferential vote) for different candidates from the same party (really!)?
Scholars agree that, e.g., the Danish or Finnish electoral systems are much more open to voters having a decisive influence than the Belgian system. As in the Belgian system, also in the Danish and Finnish electoral systems voters may choose from among a number of candidates from the same party; the difference when compared with the Belgian regulation lies in the fact that they do not have the above mentioned alternative voting option, but only preferential voting, and that therefore only the candidate who obtained a higher number of voters’ preferential votes can be elected. As described by an expert for the Danish electoral system, Jørgen Elklit, on a Danish ballot paper the different candidates from a political party are listed in alphabetical order (in contrast to the alternative manner of voting in Belgium, the political party does not initially rank the candidates itself) and the voter must necessarily circle one of the candidates and thus make a choice by him- or herself. The elected candidate is the one who obtained the highest number of such inevitably preferential votes.[15] Such entails that in the Danish system the decisive influence of voters (and not of political parties) on the allocation of seats is ensured in practice.
The Finnish system is described and commented on by Tapio Raunio, an expert on this electoral system, in very similar terms as regards the decisive influence of voters.[16] The Finnish regulation goes even a step further as regards the decisive influence of voters on the allocation of seats, and, in contrast to the Belgian and Danish systems, requires that in Finland the question of who becomes a candidate on the list of a party is already to a significant extent determined by voters and not political parties. The majority of the candidates on the list of a party are thus proposed and chosen by the party’s members residing in the relevant district themselves and one fourth or one fifth (depending on the party) of the candidates chosen in this manner may be changed by the bodies of the party (primarily in order to ensure a balanced composition of the lists in terms of geographical, socio-economic, gender, and demographical aspects); however, according to Raunio, in practice, this is rare and does not undermine the decisive influence of voters in Finland.[17]
These are examples of systems that feature a decisive influence of voters, and as we have seen, those of them that diminish the enacted decisive influence in practice have been subject to criticism from experts as being systems that do not allow for a sufficient influence in the relation voter–political party. The comparison of such comparative legal literature on the decisive influence of voters (and not political parties) with the Slovene system, which, as already mentioned, does not enable voters to choose from among the different candidates from the same political party as the party forces only one candidate (really!) into every district, does not require any further comment. It is evident that the Slovene system precludes a decisive influence of voters as such is understood in comparative legal literature already from the outset, before the question of how it should be best developed in practice even arises.
 
12. In addition to the issues outlined above, the almost complete exclusion of the decisive influence of voters (and not parties), the Slovene system has another severe anomaly that in practice completely undermines the influence of voters on the allocation of seats. As it entails the only system in Europe that I know of wherein a political party forces upon voters only one single candidate per electoral district, an untenable situation arises – a voter votes for a candidate only because he or she comes from the political party that the voter wants to support although the voter may not even like and otherwise never would have supported the imposed candidate, but would have wanted to exclude the candidate and support one of the other candidates from that party who have been forced upon voters in other districts of the same constituency. However, the voter cannot support another candidate from the same party, as, within the Slovene system, he or she may only vote for the party’s imposed candidate if he or she wants to vote for that party. However, in doing so – and herein lies the anomaly – the voter must even vote AGAINST the allocation of a seat to his or her preferred candidate from the same party who stands for election in one of the neighbouring districts of the same constituency. As initially explained, which of the candidates competing against each other in a constituency obtained a relatively higher number of votes in his or her district is namely decisive for the allocation of seats to candidates from the same political party. The anomaly of the unique Slovene electoral system thus lies in the fact that it does not only prevent but even perverts and thereby nullifies any important (and genuine) influence of voters on the allocation of seats within a single list. Experts on electoral systems and legislatures in western European countries knew better than to enact something similar to this electoral system anywhere else. It perverts the influence and will of the voters, and therefore democracy itself, to a point where it is no longer clear whether the personal outcome of an election can still be said to be an expression of the genuine will of the voters and therefore of the rule of the people.
 
13. Thirdly, the decisive influence of voters on the allocation of seats may also be measured from the perspective of whether from every electoral area where you yourself had a chance to actually vote at least one or more deputies were elected (i.e. that seats were allocated). If no deputy was elected (i.e. no seat was allocated) from the electoral area where you actually had a chance to vote, then your influence on the allocation of seats is insignificant. If such electoral areas without a deputy are numerous, there are thus also many voters without a decisive influence. The decisive influence of voters on the allocation of seats is namely not merely an empty phrase, but such also serves a purpose – the constitutional value of voters having an effective influence on the system of representative democracy, i.e. the system of the most efficient manner of a voter managing his or her life through the relationship with a deputy, by which the deputy shall be truly bound. Only if the relationship between a voter and a deputy is truly democratic – such that the deputy’s election is in fact directly dependent on the voter’s vote – can we say that the constitutional value behind the term “decisive influence” has been realised. Such a situation is the complete opposite of that wherein voters who were effectively left without a decisive influence on the allocation of seats in their electoral area where no deputy was elected and who are thus voters who, as regards the question of the allocation of seats from among candidates from the list of the same party, could only have voted against such an elected deputy from another district. No sufficiently democratic relationship could develop between these voters and the deputies, as such remains at a weak and merely principled or theoretical level and is even growing into an anomaly. Therefore, the importance of the requirement that voters have a decisive influence is diminished and an inequality between voters is being created as regards this important lever of truly democratic governance.
 
14. A quick comparative overview also leads to the conclusion that countries with longer democratic traditions were very well aware of the importance of that value (i.e. also of this third aspect of the influence of voters on the allocation of seats). Wherever in Europe I turn, I see instances of proportional electoral systems that at the same time also ensure, in a mathematical sense and also to all groups of voters, that at least some seats will be allocated from the electoral area where they actually have the right to vote. In Austria,[18] e.g., on average 4–5 deputies are elected per each electoral unit, in Denmark, in 17 electoral districts approximately 8 deputies are elected (a maximum of 16 and a minimum of 2), in Finland 13 deputies in 14 districts on average, in Belgium 4 to 22 deputies in 11 districts, and in the Netherlands and in Israel, all deputies are elected by all voters within the framework of one electoral unit at the level of the state. At first glance, there is thus no system that would result in a group of voters in an electoral unit, i.e. the only unit where they could vote, not allocating a seat directly to at least one concrete candidate. On the contrary, it appears that such a decisive influence of voters on the allocation of concrete seats is enabled in all systems except in Slovenia,[19] where allegedly 21 out of 88 districts do not have an elected deputy. At the same time, one can easily see how we could also have avoided the outlined deficiency in our system. If the current 88 electoral districts were replaced, for example, by 44 electoral units, two deputies would be allocated seats in every unit; if the current districts were replaced by 22 electoral units, 4 deputies would be allocated seats in each of them; and if the current districts were replaced by 11 electoral units, 8 deputies, if they were replaced by 8 units, 11 deputies, etc. One of the numerous possibilities would certainly also be to abolish the 88 electoral districts and maintain the 11 existing constituencies; also in such a manner the legislature would ensure, in a mathematical sense, that no voter would remain without an elected deputy whom he or she had a chance to vote for directly and thus without a decisive influence. As such appears to apply to all other electoral systems throughout Europe, the Slovene electoral system should also remedy this constitutional deficiency (especially as our Constitution expressly requires that voters have a decisive influence on the allocation of seats).
 
15. As the Slovene electoral system does not enable the actual – and even less so decisive – influence of voters as regards not even one of the three meanings outlined above (see Firstly, Secondly, and Thirdly above), and therefore also does not guarantee the cumulative character of such decisive influence as follows from these three meanings, in my assessment, it cannot be justifiably concluded that a decisive influence is ensured. A review that fails to respond to the above statements would be overly general. If it referred to the legislature’s allegedly wide margin of appreciation in connection with electoral legislation, it would disregard the fact that the right to vote entails (1) first-class constitutional subject-matter and (2) that the requirement of a decisive influence originates in an explicit and special constitutional provision and is not “merely” derived from some general constitutional principle. Therefore, it is only the Constitutional Court that is called upon to fill the content thereof with meaning.
 
 
III The Issue of the Unconstitutionality of a Constitutional Amendment
 
16. I voted against Point 5 of the operative provisions because the majority’s reasoning in this part is too brief (i.e. only two short paragraphs in total) and without significant substantive arguments. It concerns the response to the applicant’s claims that the National Assembly should have respected the will of the people regarding the majority electoral system from the 1996 referendum, which was subsequently affirmed by the Constitutional Court, but the National Assembly outmanoeuvred the Constitutional Court with a constitutional amendment that wrote into the Constitution the requirement that the electoral system is to be proportional with due consideration that voters have a decisive
influence on the allocation of seats to the candidates.[20]
 
17. The majority decision responds to this argument by means of only two sentences, namely that “[n]either the Constitution nor any laws determine the power of the Constitutional Court to review the mutual consistency of different constitutional provisions. As the Constitutional Court thus lacks the power to review the mutual consistency of constitutional provisions, it rejected the request for a review of the constitutionality of the fifth paragraph of Article 80 of the Constitution (Point 5 of the operative provisions).”
 
18. Such an overly general position disregards the fact that the doctrine of the so-called unconstitutional constitutional amendment has become well established over the last few decades in comparative constitutional case law, as well as in expert and scientific literature.[21] International constitutional law experts at the highest level have written scientific articles[22] and leading publishers have published scientific monographs[23] regarding such and regarding the conditions for abrogating constitutional amendments, and, in addition, constitutional and supreme courts around the world have developed quite interesting practical variations of the doctrine that, subject to certain conditions, allow for or even require that constitutional courts abrogate constitutional amendments for being inconsistent with a more fundamental constitutional value. Such power, which is grounded in the nature of the matter, does not require an expressly determined competence in the Constitution or a law, as this power originates from an understanding of the essence of the Constitution as the highest legal act for the protection of the fundamental values of constitutional democracy.
 
19. As the case at hand raises precisely some of the questions that are also raised in the mentioned comparative legal literature and constitutional case law, in my opinion, the two-sentence reasoning of Point 5 of the operative provisions was so general that also in this part I felt a duty to vote against such a careless approach to first-class constitutional law issues.
 
    
 

Dr. Dr. Klemen Jaklič

Judge

 
 
[1] Venice Commission, Code of Good Practice in Electoral Matters, Strasbourg, 25 October 2018. Accessible at: https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2002)023rev2-cor-e.
 
[2] Only in rare instances, such as positive discrimination for the protection of minorities, is an exception allowed, and only some citizens, i.e. the members of a minority, can have two votes: one in the general election of deputies and another in the election of the representative of the minority. However, these rare exceptions do not include instances of specific electoral systems, such as split voting, i.e. an electoral system wherein a voter does not have only one vote as he or she may cast votes for more than one list, or an electoral system that enables separate voting in two districts. In such instances where the voter has more than one vote, the “one person, one vote” rule is namely thoroughly observed – as is explicitly explained and highlighted by the Venice Commission, in these instances the “one person, one vote” rule entails that each voter has the same number of votes (See, e.g., the Code of Good Practice in Electoral Matters cited in the preceding note, pp. 15–16).
 
[3] One of the experts from the field of electoral law who did not participate in the procedure for drafting the electoral system (Prof. Dr Jurij Toplak) also drew attention to the outlined violation at the public hearing. To my knowledge, this was the first time an expert explicitly took a position regarding this issue (from this perspective). See the transcript of the magnetic tape recording of the public hearing on 7 November 2017 (statements by Prof. Dr Toplak). The petition of Dr Toplak before the Constitutional Court in Case No. U-I-226/00 from over fifteen years ago can also be understood as having alleged such type of violation. However, the Constitutional Court evidently did not understand it in such a manner, as in the reasoning of its decision rejecting the petition it considered the passive (and not active) right to vote, also including in its reply that seats are allocated at the level of the constituencies and not districts and that the constituencies are approximately equal in size. However, such is of course the answer to the question of whether there exists an inequality as regards the allocation of the number of seats to different political parties and not the answer to our further question regarding unequal active suffrage with regard to the allocation of the seats obtained in such manner to one and not a different candidate within one and the same political party. If it was intended to respond to the latter – i.e. our present – challenge, then the answer of the Constitutional Court was evidently wrong, as the decision on which of the candidates from the same political party will be allocated the obtained seats is decided at the level of the districts (and not the constituencies) that are radically unequal.
 
[4] Or they were at least (erroneously) understood in such a manner by the Constitutional Court; see the preceding note.
 
 [5] Karcher v. Daggett, 462 U.S. 725 (1983): “Congressional districts must be mathematically equal in population, unless necessary to achieve a legitimate state objective.”
 
[6] “The maximum admissible departure from the distribution criterion adopted depends on the individual situation, although it should seldom exceed 10% and never 15%, except in really exceptional circumstances (a demographically weak administrative unit of the same importance as others with at least one lower-chamber representative, or concentration of a specific national minority).” The Code of Good Practice in Electoral Matters (op. cit., note No. 1), p. 16, point 15.
 
[7] Analysis by the Department for Analyses and International Cooperation of the Constitutional Court, see the case file. See also the ACE Encyclopedia: Boundary Delimitation, accessible at: http://aceproject.org/ace-en/topics/bd/onePage.
 
[8] Analysis by the Department for Analyses and International Cooperation of the Constitutional Court, see the case file. See also the ACE Encyclopedia: Boundary Delimitation, accessible at: http://aceproject.org/ace-en/topics/bd/onePage, p. 44, 122; as well as Delimitation Equity Project: Resource Guide, pp. 251–260, accessible at: https://www.ifes.org/publications/delimitation-equity-project-resource-guide.
 
[9] See note No. 7 and J. Toplak, Volilni sistem in oblikovanje volilnih enot [The Electoral System and the Delineation of Constituencies], Nova revija 2000, pp. 68–69, 90–93.
 
[10] See the preceding note.
 
[11] See, e.g., M. Gallagher and P. Mitchell (eds.), The Politics of Electoral Systems, Oxford University Press 2008. For a concise overview of preferential voting throughout the world, see J. Toplak, “Preferential Voting: Definition and Classification”, Lex Localis 15(4), 2017, pp. 737–761.
 
[12] See, e.g., M. Gallagher and P. Mitchell (eds.), The Politics of Electoral Systems, preceding note. See also the concrete ballot papers from the listed countries, which I acquired while studying the case and filed in the case file – the ballot papers list the candidates from a political party by their names and subsequently the voter freely chooses from among them.
 
[13] L. De Winter, “Belgium: Empowering Voters or Party Elites?”, in: M. Gallagher and P. Mitchell (eds.), The Politics of Electoral Systems, Oxford University Press 2008, preceding note. The findings for Slovenia are similar – see thus far the only analysis of the preferential votes of Slovene voters conducted with regard to local elections (where, in contrast to elections to the National Assembly, Slovene voters may choose from among the different candidates from a political party), J. Toplak, “Preferenčni glas in njegova uporaba v Sloveniji” [The Preferential Vote and Its Usage in Slovenia], Lex Localis 1(2), 2003, pp. 15–43.
 
[14] Ibidem. Although they allow a choice from among the different candidates from the same political party (preferential voting), certain other regulations subsequently diminish the influence of the voters in relation to political parties in other ways, e.g. by introducing different thresholds for the consideration of preferential votes. In instances of such thresholds, preferential votes are only considered if a candidate obtains a sufficient number thereof. J. Toplak, “Preferential Voting: Definition and Classification”, Lex Localis 15(4), 2017, pp. 737–761.
 
[15] J. Elklit, “Denmark: Simplicity Embedded in Complexity (or is it the Other Way Round?)”, in: M. Gallagher and P. Mitschell (eds.), The Politics of Electoral Systems, Oxford University Press 2008, note No. 11, pp. 463–465.  
 
[16] T. Raunio, “Finland: One Hundred Years of Quietude”, in: M. Gallagher and P. Mitchell (eds.), The Politics of Electoral Systems, Oxford University Press 2008, note No. 11, pp. 474–484.
 
[17] T. Raunio, pp. 477–478. In this light, it should be stressed that the stage of selecting the candidates for the list of a party is also essential to the question of the decisive influence of the voters on the allocation of seats, as no one can be allocated a seat unless they were previously included in a list and therefore the position (the evasive manoeuvre) of the majority that the phrase “a decisive influence on the allocation of seats” refers only to the final stage and not also to the selection of the candidates on a list, is not correct.
 
[18] At least according to my analysis of this complex comparative issue (for which, due to my work on other open cases, I could not take as much time as I would have normally wished to accord to a more thorough study of this aspect).
 
[19] Nineteen districts allegedly have two deputies each and one district even has three. These data were provided by the National Council as the proposer of the application for a review of constitutionality, see the case file.
 
[20] Constitutional Court Decision No. U-I-12/97, dated 8 October 1998.
 
[21]Prof. Richard Albert, e.g., writes as follows: “If we look carefully around the world, we cannot deny as a descriptive matter that there are limits to the amendment power. In countries far and near – from Argentina to Austria, Belize to Brazil, Greece to Hungary, India to Italy, Peru to Portugal, South Africa to Switzerland, Taiwan to Turkey – high courts have with accelerating frequency adopted the doctrine of an unconstitutional constitutional amendment, authorizing themselves (sometimes in defiance of the constitutional text) to strike down an amendment for violating their reading of the constitution, whether on procedural or substantive grounds. What has largely prompted courts to adopt this doctrine is the defense of democracy. Courts have invoked the doctrine to protect what they regard as the fundamental values of their constitutional democracy. [F]or example, … [i]n the Czech Republic, the Constitutional Court annulled an amendment that it determined would have changed “the essential requirements for a democratic state governed by the rule of law.” R. Albert, “How a Court Becomes Supreme: Defending the Constitution from Unconstitutional Amendments”, see the following note.
 
[22] See, inter alia, R. Albert, M. Nakashidze, T. Olclay, “The Formalist Resistance to Unconstitutional Constitutional Amendments”, Hastings Law Journal, No. 70, 2019 (accepted for publication); R. Albert, “Constitutional Amendment and Dismemberment”, Yale Journal of International Law 43(1), 2018; R. Albert, “How a Court Becomes Supreme: Defending the Constitution from Unconstitutional Amendments”, Maryland Law Review 77(1), 2017; R. Albert, “Four Unconstitutional Constitutions and Their Democratic Foundations”, Cornell International Law Journal 50(2), 2017, pp. 169–198; R. Dixon and D. Landau, “Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment”, International Journal of Constitutional Law (ICON), No. 13(3), 2016, pp. 606–638; R. Passchier and M Stremler, “Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision”, Cambridge Journal of International and Comparative Law, No. 5(2), 2016; R. Albert, “The Theory and Doctrine of Unconstitutional Constitutional Amendment in Canada”, Queen’s Law Journal, No. 41(1), 2015; C. Dupré, “The Unconstitutional Constitution: A Timely Concept”, in: A. von Bogdandy and P. Sonnevend (eds.), Constitutional Crisis in the European Constitutional Area, Nomos 2015, pp. 364–383; V. Jackson, ”Unconstitutional Constitutional Amendments: A Window into Constitutional Theory and Transnational Constitutionalism”, in M. Bäuerle and P. Dann, Demokratie-Perspektiven: Festschrift für Brun-Otto Bryde zum 70. Geburtstag, Michael & Astrid Wallrabenstein 2013; Y. Roznai, “Unconstitutional Constitutional Amendments: The Migration and Success of a Constitutional Idea”, The American Journal of Comparative Law, No. 61(3), 2013, pp. 657–720; G Halmai, “Unconstitutional Constitutional Amendments: Constitutional Courts as Guardians of the Constitution”, Constellations, No. 19(2), 2012, pp. 182–203; A Kavanagh, “Unconstitutional Constitutional Amendments from the Irish Free State to the Irish Republic”, Oxford Legal Studies, No. 10/23, 2013, and in: E. Carolan, The Constitution of Ireland: Perspective and Prospects, Bloomsbury 2012, pp. 331–354; Y. Roznai and S. Yolcu, “An Unconstitutional Constitutional Amendment – The Turkish Perspective: A Comment on the Turkish Constitutional Court’s Headscarf Decision”, International Journal of Constitutional Law (ICON), No. 10(1), 2012, pp. 175–207; A. Barak, “Unconstitutional Constitutional Amendments”, Israel Law Review, No. 44(3), 2011, pp. 321–341; S. Issacharoff, “Constitutional Courts as Democratic Hedging”, Georgetown Law Journal, No. 99, 2011; R. Albert, “Nonconstitutional amendments”, Canadian Journal of Law & Jurisprudence, No. 22(1), 2009, pp. 5–47; K Gözler, Judicial Review of Constitutional Amendments, Ekin 2008; G. Jacobsohn, “An Unconstitutional Constitution? A Comparative Perspective”, International Journal of Constitutional Law (ICON), No. 4(3), 2006, pp. 460-487; I. Gomez, “Declaring Unconstitutional a Constitutional Amendment: The Argentine Judiciary Forges Ahead”, University of Miami Inter-American Law Review, No. 31(1), 2002, pp. 93–119; P. Jambrek and K. Jaklič, “Contribution to the Opinion of the Venice Commission on the Constitutional Amendments Concerning Legislative Elections in Slovenia”, European Commission for Democracy through Law (Venice Commission), Strasbourg, 2000; R. O'Connell, “Guardians of the Constitution: Unconstitutional Constitutional Norms, Journal of Civil Liberties, No. 4(48), 1999, pp. 48–75; D. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, Duke University Press, 1997, p. 38; G. Wright, “Could a Constitutional Amendment be Unconstitutional?”, Loyola University of Chicago Law Journal, No. 22(4), 1991, pp. 741–764; J. Rosen, “Was the Flag Burning Amendment Unconstitutional?”, Yale Law Journal, No. 100(4), 1990, pp. 1073–1092.
 
[23] For example, Y. Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, Oxford University Press, 2017.
 
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute statute
Applicant:
Državni svet Republike Slovenije
Date of application:
27.02.2015
Date of decision:
08.11.2018
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute establishment – it is inconsistent with the Constitution/statute rejection
Document:
AN03928