The following is a guest post from Yen-tu Su, part of the symposium on Politics as Markets at 25:
Politics as Markets has often been read as a structuralist manifesto for the then emerging field of the law of democracy. “In cases involving the regulation of politics,” Samuel Issacharoff and Richard Pildes emphatically argue that “courts should shift from conventional first-order focus on rights and equality to a second-order focus on the background markets in partisan control.” This paradigmatic assertion is so thought- provoking that a cottage industry has since emerged to debate whether and how judicial oversight of political regulation should and can be so retooled and transformed. 25 years after the publication of Politics as Markets, the individual-rights-versus-state-interests balancing remains the dominant approach in the world of comparative election law jurisprudence. But there has been, indeed, a profound change in the way we think and talk about “rights” and “state interests” in the democratic political processes: Thanks in no small part to the penetrating insights of Politics as Markets, now we are getting much better at telling whether the emperor is naked or clothed.
Perhaps two recent cases concerning the phantom voter problem can help us understand and appreciate what the politics-as-markets prism enables us to see. As a common criterion for voter qualification, the residence requirement is primarily administered through an official registration system of some sort. However, in order to prevent or minimize a common electoral malpractice whereby a non-resident uses fictitious or fraudulent registration of residence to vote in a political community to which she does not belong, a legal safeguard that can be characterized as the phantom voter law must be in place to enforce the bona fide residence requirement for voting. Such voting rules aim at protecting electoral integrity and preserving, as noted by Justice Thurgood Marshall in Dunn v. Blumstein (1972), “the basic conception of a political community.” But surely, they can also be framed and understood in a more general sense—as part of the “background rules that structure partisan political competition.”
Politics as Markets teaches us that ground rules of political competition are susceptible to anticompetitive partisan manipulation by those in power, and this is arguably what happened to the phantom voter law in Hungary. In 2021, the Fidesz-dominated Parliament amended the Citizens Register Act to the effect of opening the gate for “voter tourism,” for it essentially allows citizens to register and vote in any districts of their choosing without having to live in there actually. Clear-eyed observers of Hungarian politics like Kim Lane Scheppele have little trouble deciphering what Viktor Orbán’s Fidesz wanted from this new law: a gerrymandering-like opportunity for the ruling party to change voter composition to their electoral advantage. In 2022, however, the Hungarian Constitutional Court dismissed as meritless the constitutional challenge brought by MPs from the opposition. Reading this rubber-stamping decision, one cannot help but lament the partisan capture of a potential political trustbuster.
In Taiwan, phantom voting has been considered a criminal electoral offense since 2000, and the Criminal Code was amended in 2007 to specifically prohibit any citizen from defrauding the household/residence registration for electoral purpose and from voting subsequently. According to the census, more than 6 million people in Taiwan do not actually live in their registered residence. The most common cause is the failure to update household registration upon moving, and some people make false registration for reasons unrelated to elections. Against this backdrop, some 5 thousand plus people had been convicted of phantom voting (mostly in ground-level local elections) in the years 2000-2022. Several citizen petitions had been filed to the Taiwan Constitutional Court (TCC) since as early as 2009 to challenge the constitutionality of using criminal law to deter and punish phantom voters, but it was not until July 2023 that the TCC delivered its decision of the Phantom Voter Case.
Politics as Markets advices courts to construe the protection of individual rights from a structural perspective of how the democratic political process functions as a whole, and this is arguably how the TCC approached the question whether the criminal phantom voter law unconstitutionally infringes on the citizens’ right to vote. Construing the constitutional right to vote to include the freedom to join or leave a political community by choice, the TCC subjected the disputed Criminal Code provisions to a strict proportionality review. Ultimately, the TCC upheld all the laws but vacated a high court decision for applying too narrow a definition of bona fide residence in the context of voting. What drove the TCC to its conclusion was not only a compelling case for preserving and protecting democratic self-governance of a political community. The TCC also emphasized how phantom voting could lead to unfair distortion of electoral competition. The TCC did not cite Politics as Markets, but a strong case can be made that the TCC had heeded its advice and took political competition seriously.
Whether it is about detecting anticompetitive manipulation, or about channeling structural concerns of political competition into the rights discourse, Politics as Markets continues to shed light on how we approach issues of election law. If we have become better students of the law of democracy, we owe much to the inspiration and guidance of this masterpiece. Happy 25th Anniversary to Politics as Markets.
Yen-tu Su is a research professor at Institutum Iurisprudentiae, Academia Sinica, Taiwan.