Voting as veto.

• Author: Kang, Michael S.

This Article introduces an alternate conception of voting as veto-based on "negative preferences" against a voter's least preferred outcomes--that enriches voting theory and practice otherwise dominated by a conception of voting as a means of expressing a voter's ideal preferences. Indeed, the familiar binary choices presented in American political elections obscure the pervasiveness of negative preferences, which are descriptively salient in voting under all types of circumstances. Negative preferences have been overlooked, despite their theoretical and practical importance across many domains, leaving important questions unexplored in the literature. The Article develops a normative and positive account of voting as veto that identifies the costs, benefits, and critical tradeoffs in the formal recognition of negative preferences.

TABLE OF CONTENTS INTRODUCTION I. NEGATIVE PREFERENCES IN THEORY AND PRACTICE A. Introduction to Negative Preferences B. Negative Preferences in Practice: Voting Procedures 1. Voting on Affirmative Selection 2. Voting on Negative Disqualification II. VOTING AS VETO: THE COSTS, BENEFITS, AND TRADEOFFS OF RECOGNIZING NEGATIVE PREFERENCES A. Internal Considerations: Voter Sovereignty and Negative Preferences 1. Satisficing Incomplete Preferences 2. Salient Negative Preferences B. Expressive Considerations and the Problem of Ugly Negativity 1. Expressive Considerations 2. Ugly Preferences C. Instrumental Considerations: Consensus Centrism and Status Quo Bias 1. Consensus Centrism 2. Status Quo Bias 3. Negative Preferences and Entrenched Division III. THE NEW LENS OF NEGATIVE PREFERENCES: THREE APPLICATIONS A. Voir Dire B. Racially Polarized Voting C. Direct Democracy CONCLUSION INTRODUCTION

The reality television show American Idol chooses a winning contestant by measuring what I call the "affirmative preferences" of the show's audience. American Idol gradually winnows down a large field of singers through a weekly process of elimination. After each week's performances, American Idol invites viewers to vote for their favorite singer by recording their top choice through a telephone vote. The votes are "affirmative" in the sense that each voter registers her most preferred choice--the competitor whom the voter most desires to be the ultimate winner. The competitor with the fewest votes during the week is eliminated from the show, and the process iterates in subsequent weeks until only one competitor, the winner, remains.

Affirmative preferences count in American Idol--what I call "negative preferences" do not. "Negative preferences," as I treat them here, reflect the voters' desires to avoid certain alternatives among a field eligible for selection. Rather than reflecting affirmative preference for a particular alternative, negative preferences represent an opposition against a particular alternative. (1) Because American Idol counts only affirmative preferences in the voting process, a contestant's objective on the show each week is to avoid being the contestant in the multi-competitor field with the fewest affirmative votes. (2) Voters' negative preferences go unrecognized as a formal matter in the voting process. If American Idol were to change its voting process and formally recognize negative preferences, the show would ask voters to decide which competitor is least deserving of winning the show.

The competitor who receives the most votes--that is, the most votes as the worst competitor and least deserving of victory---could be eliminated each week until only one winning competitor survived. The conceptual distinction between affirmative and negative preferences, as I describe them, tracks a substantive difference in the subjective motivation underlying the voter's decision. For instance, one might vote for a candidate based mainly on a strong affinity for that particular candidate-an affirmative preference for the candidate--or vote for the same candidate based mainly on a strong dislike for the candidate's competition--a negative preference against the opposition. (3) "Affirmative" or "negative" describes the direction of the underlying preference motivating the vote choice* Although subjective motivation may be multifaceted, a voter might have voted for Barack Obama in last year's presidential election mainly because he liked Obama, or alternatively, mainly because he disliked Obama's opponent, John McCain, as well as other minor competitors such as Bob Barr and Ralph Nader. (4)

The familiar predominance in American elections of binary choices between only two meaningful alternatives obscures what might otherwise be a more intuitive distinction between voting based on affirmative rather than negative preferences. (5) The traditional method of plurality voting in the United States for instance, the familiar first-past-the-post, winner-take-all format for candidate elections--encourages an effective voter choice between only candidates from the two major parties as a function of Duverger's law. (6) When only two alternatives are offered to voters, it makes no difference whether voters are asked to formally vote their affirmative or negative preferences, because a vote for the Democrat is effectively a vote against the Republican, and vice versa. The mismatch between negative preferences and traditional voting (which formally recognizes mainly affirmative preferences) can obscure even the most salient cases of negative preferences at work.

Negative preferences are therefore underappreciated but nevertheless practically important across many domains of voting. Indeed, negative preferences regularly motivate all types of voting decisions, and at times represent voters' most meaningful preferences. What is more, a wide array of voting procedures, which this Article briefly surveys, permits the expression of negative preferences to varying degrees, but the literature has not explored this commonality across procedures. As a result, although the notion of negative preferences should be intuitively familiar, there is nonetheless a need in the voting literature for systematic consideration of negative preferences in voting as a potential tool in democratic governance.

One goal of this Article is to give a name to negative preferences and highlight their importance in voting and democratic governance. In the absence of a linguistic label for negative preferences against an alternative or outcome, and without a means for exercising those preferences, it is easy to conceptualize preferences as only affirmative preferences for something. (7) Academic theory about voting and governance usually regards recognition of affirmative preferences as the operative assumption, because when asked to cast a vote, whether it is voting for the American Idol or American president, it is traditionally thought to be a vote in support of one's most preferred alternative or candidate above the other eligible ones. (8) This Article begins the project of sharpening the distinctions between familiar understandings about voting as affirmative choice on one hand, and voting as expression of negative preference as a practical matter on the other hand.

In addition to subverting the traditional conception of voting--from affirmative to negative--I hope to complicate the traditional conception of veto, which is typically exercised as an outfight negative trump held by a single actor. The president, for instance, may exercise a unilateral right of veto to override the affirmative choice of the Congress. By contrast, voting based on negative preferences may successfully aggregate the many negative preferences from a multimember electorate to constitute a collective veto, exercised by the voting body, rather than the more familiar unilateral veto held by an individual executive. Reconceptualizing voting as veto therefore flips both voting and veto on their heads. It simultaneously upsets familiar conceptions of collective voting, from affirmative to negative, and of the veto, from the individual to the collective, to yield a new framework of "voting as veto"--the recognition of negative preferences in voting to pare away disfavored alternatives in the process of determining collective choice.

This Article builds a positive and normative account for voting as veto and the formal recognition of negative preferences in voting. Different voting structures formally recognize negative preferences in voting to varying degrees and thus provide more or less opportunity for the effectuation of negative preferences in collective decision making. Looking across a variety of different voting procedures, this Article identifies commonality in how they effectuate negative preferences and sees them not as troubling divergences from majority rule based on affirmative preferences, but instead as connecting with a different orientation about what types of preferences count in democratic practices. Even when satisfaction of negative preferences does not align with usual sensibilities about voting, a focus on negative preferences may offer a fuller understanding of voters' subjective motivations in voting and enable one to better understand the preferences that motivate voters within a specific context.

However, this Article does not claim that negative preferences are always more important, more salient, or more common than affirmative preferences. Nor does it claim that negative preferences always, or even in most cases, deserve priority over affirmative preferences. Greater recognition of negative preferences would certainly bring its own costs, which can be considerable and prohibitive. Even when voters' primary preferences are negative, recognition of such preferences could alter voting discourse, encourage conflict, and retard change in problematic ways. What is more, the choice to recognize negative preferences in greater or lesser measure implicates certain value judgments, such as the value of centrism and social...