The Beginning of the End of the Progressive Era in State Constitutional Law?

For the last 100 years or so, many state constitutions have included provisions that create alternatives to representative and political party mediated democracy. The Progressive Era was marked by proposals to reform the structure of all levels of government, and state constitutions and local charters bear its marks today. The initiative and referendum, non-partisan elections, and recall provisions were understood as methods to use constitutional law and institutional design more broadly to create an alternative to representative democracy, a way to break the lock interest groups and political party organizations had over state politics. Later, Progressive-Era inspired ideas, like non-partisan redistricting commissions, took off, with a number of states seeking to remove politics from the districting process.


We have not seen the end of these provisions. But I am beginning to wonder whether we are currently seeing the beginning of the end for some of them. At the very least, across very different kinds of states, we are seeing pushback on Progressive Era and Progressive Era-style governing institutions.


In California, the failed recall of Governor Gavin Newsom has generated a huge amount of criticism of recall elections as a tool of state democracy. Erwin Chemerinsky and Aaron Edlin wrote an op-ed arguing that California’s peculiar recall system is unconstitutional. Democrats in California of all stripes have called for a repeal of repeals. Even the extremely goo-goo-ish New York Times thinks that the California process is problematic, even if it won’t go as far as rejecting recalls entirely. The things that made Newsom vulnerable were the unpredictable turnout in recall elections and the anti-incumbent bias built into the structure of the law, where the incumbent loses if he does not get 50%, but any replacement only needs to win a plurality. For Progressives, these were features of the system, a way of breaking the control parties exercised over ordinary elections, allowing mass democracy to overcome party democracy. But in a world where general election outcomes are predictable, such variation is increasingly intolerable to the majorities of voters and politicians who run California.


In Mississippi, a state court effectively ended the use of the initiative in the state through a less-than-perfectly-obvious form of constitutional interpretation. In many other states, state legislatures have sought to repeal or undermine laws enacted through initiatives. In these states, largely Republican dominated, initiatives have been an important lever for out of power liberal groups to propose policies