North Carolina Could Be on the Verge of a Constitutional Crisis

At least one high-profile election from 2024 remains uncalled: a race for a seat on the North Carolina Supreme Court. Despite trailing incumbent Allison Riggs (D) by 734 votes, Jefferson Griffin (R), a state appellate judge, hasn’t conceded. Instead, he has challenged the results, arguing that, for various reasons, more than 60,000 votes should not count — though none of those reasons involve voter fraud or any mistakes by voters at all.

The election dispute is deep into the judicial process. The North Carolina Supreme Court just rejected some of Griffin’s arguments but left open the possibility of tossing enough votes to change the outcome. Riggs has appealed to federal court. As a North Carolinian who has closely followed these proceedings and as a scholar of state constitutions, I raise my voice to warn citizens in the 49 other states. Cases like this present a serious risk of constitutional crisis.

Many Americans are already concerned about a constitutional crisis at the national level. However, as I discuss in an upcoming book, constitutional crises have occurred at the state level throughout history and remain a possibility today. Constitutional crises at the state level have included events like elected officials ignoring court orders, rival candidates holding inaugural ceremonies for themselves while an election dispute is unresolved, and even militias backing opposing politicians fighting bloody battles.

Candidates refusing to concede and making wild charges of fraud can stretch a constitution and, historically, election disputes have triggered constitutional crises. The lack of impartial umpires who can decide election challenges and be perceived as fair by citizens can break a constitution. The Brooks-Baxter War is an example.

Both Elisha Baxter and Joseph Brooks claimed to win Arkansas’s 1872 gubernatorial election. The judges called upon to decide the resulting election contest were all openly partisan. Chief Justice John McClure of Arkansas’s supreme court was co-owner of the state’s most prominent Republican newspaper, and he lobbied for legislation that Baxter opposed and attacked Baxter in the press. When Arkansas courts ultimately ruled that Brooks had won the election, Baxter simply ignored them and claimed he was a victim of politicized justice. He raised a militia, which fought battles with a militia loyal to Brooks and left at least 20 dead and many more wounded.

The Brooks-Baxter War illustrates how events in North Carolina could spiral out of control. The judges ruling on Griffin’s challenge all affiliate with political parties. Even if we accept that the judges in this case all behaved in good faith — and I make no accusation that they didn’t — we would be foolish to ignore the perception problem. Early this month, the three members of an intermediate appellate panel appeared to rule along party lines in the dispute: the two Republicans sided with Griffin and the Democrat sided with Riggs. At the supreme court level, all but one of the Republicans sided with Griffin, while the lone Democrat sided with Riggs. Doesn’t this look nakedly political?

And if courts lose widespread legitimacy, citizens will be less likely to abide by their decisions, as the Brooks-Baxter War demonstrates. The damage may soon become apparent.

Griffin may ultimately prevail in the legal dispute and take the bench. Right now, Republicans control the legislature, but Democrats serve as governor, lieutenant governor, and attorney general (among other executive branch positions). The two branches are embroiled in serious conflict about the scope of the other’s powers. Griffin could author a decision siding with the legislature over the executive or join a decision doing so in the coming months. Democrats may take the position that he lacks proper legal authority to write such a decision and that they can ignore the North Carolina Supreme Court because it is a corrupt partisan institution.

Further down the road, 2026 and 2028 may once again present a closely divided North Carolina with contested elections. If a dispute over an important race makes its way to the North Carolina Supreme Court, Griffin could write a decision handing the election to the Republican. Again, a disgruntled Democrat could argue that Griffin doesn’t have the authority to decide a contested election and feel morally justified in ignoring a state supreme court they believe steals elections for Republicans. In either case, a constitutional crisis will be upon North Carolinians.

There is no indication that North Carolina will reconsider how it structures the judiciary to avoid this outcome, but other states could. Only six states besides North Carolina use partisan elections to select supreme court justices. Twenty-two states use partisan elections to select at least some judges. Judicial races are more expensive than ever, with more than $100 million spent on the recent Wisconsin election. States using partisan elections should abandon them, and stringent campaign finance reform should limit the influence of moneyed interests on judicial decision-making. These steps will reduce incentives for judges to behave politically when deciding cases and increase the chances that their decisions will be respected across the political spectrum.

Many readers may be apprehensive about a constitutional crisis at the national level. I ask you to channel some of that concern into protecting the integrity of our state constitutions, which are vulnerable to failing under pressure.

Marcus Gadson will be an Associate Professor of Law at the University of North Carolina—Chapel Hill starting on July 1. He is the author of the forthcoming book Sedition: How America’s Constitutional Order Emerged From Violent Crisis about the history of constitutional crisis in America. Follow him on X.

Suggested Citation: Marcus Gadson, North Carolina Could Be on the Verge of a Constitutional Crisis, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Apr. 17, 2025), https://statecourtreport.org/our-work/analysis-opinion/north-carolina-could-be-verge-constitutional-crisis