Contract law has long implied a duty of good faith to ensure that parties to a contract do not behave opportunistically. The good faith doctrine recognizes that even carefully drafted contracts cannot prevent opportunism—the ability to exploit gaps in agreements or manipulate vague terms to one’s own advantage.  

Some describe democracy—even constitutions—as a kind of contract. The democratic compact between the people and their government coalesced in Founding Era documents. Constitutions are not, of course, contracts in the literal sense. But the connection has nevertheless prompted scholars like David Pozen to ponder why good faith isn’t more central to courts’ policing of constitutional actors.

In a forthcoming law review article, I examine good faith in U.S. elections and conclude that good faith plays an underrecognized role. Sometimes courts hold election participants to affirmative good faith requirements in state election codes. Sometimes courts police good faith in election cases when statutory language falls short. Just as contractual language cannot fully constrain parties to a contract, we rely on courts to police bad faith election conduct that may adhere to the letter of the law but defy its spirit.

Contumacy in Missouri

A recent episode demonstrates the judiciary’s role in policing good faith in elections. When the Missouri legislature joined the race to the bottom of mid-decade redistricting, Missouri voters immediately undertook to undo the damage via a referendum petition. They delivered almost 700 boxes of petition signatures in support of their cause to Missouri’s Republican Secretary of State Denny Hoskins on December 9, 2025. 

Despite pleas from Missouri election officials unsure which maps would govern the upcoming primary, Hoskins delayed his approval of the petition. Indeed, Hoskins waited until the last possible moment, one hour before the 5:00 PM August 4th deadline, to reject it. He claimed that petitioners’ effort violated the Missouri and U.S. constitutions, assertions he could have made many months earlier when petitioners first filed. 

Hoskins’s delay may not have violated the letter of the law, but it most definitely violated its spirit. Observers decried Hoskins’s cynical assumption that the courts would not block use of the new gerrymandered map so late in the game (the August 4th deadline coincided with the first day of primary voting). He was wrong. The U.S. Supreme Court refused to intervene an astounding three times.

While the Missouri Supreme Court nowhere called out Hoskins’s bad faith by name (Pozen posits that judges are often hesitant to affix explicit bad faith labels on fellow government actors), Missouri’s state supreme court did everything but. In its September 3 opinion prohibiting use of the new map, the court noted that the secretary’s delay itself “created the confusion, expense, and practical difficulties of which he complain[ed].” After Hoskins flouted the September 3 order, the court voiced similar skepticism of Hoskins’s motives: “any assertion that [Hoskins] was not attempting to defy this Court’s order … is disingenuous.” The court deemed Secretary Hoskins’s later defiance of the September 3 order “an act of contumacy.” Translation: the court held Hoskins in contempt of court (which it lifted because Hoskins backed down). 

Call it sandbagging, call it gamesmanship, call it contumacy. These words all call out the same behavior: manipulating election laws for opportunistic partisan gain.

Shenanigans in Alaska

Courts don’t always get bad faith assessments right. The current Dan Sullivan imbroglio in Alaska illustrates. When Dan J. Sullivan filed for candidacy against incumbent Senator Dan S. Sullivan, Republicans cried foul. They argued that Dan J. was a sham candidate foisted into the race by Democratic operatives to create voter confusion and siphon votes from the incumbent candidate. Carol Breecher, Director of Alaska’s Division of Elections, agreed. 

In removing Dan J. from the ballot, Breecher detailed strong circumstantial evidence of deliberate electoral deception: despite it not being his name, Dan J. inexplicably first filed his candidacy under the name of “Dan S. Sullivan”; Dan J.’s electronic filings included metadata featuring the name of a Democratic consultant; Dan J. mimicked the incumbent Senator’s design and color scheme on his campaign website; and Dan J. held no previous affiliation with the Republican Party. 

When Breecher’s decision went up to the Alaska Supreme Court, the justices held that Alaska law conferred no discretion on the Director of Elections to police sham candidacies and suggested that requiring “good faith” added an unconstitutional qualification for candidacy. 

But, as Derek Muller (one of the country’s leading experts in constitutional qualifications for office) pointed out, the court got it wrong. As Muller explained, the U.S. Supreme Court in Bullock v. Carter held that “a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies.” 

Indeed, numerous lower courts have held that election officials may disqualify would-be candidates found not to have acted in “good faith and…honest purpose.” States (and courts) routinely police sham candidacies, noting that voters are “entitled to have their identification of candidates unobscured by trickery or fraud.”

To the detriment of Alaska’s voters who now must contend with two Dan Sullivans on the general election ballot—threatening an accurate determination of Alaska voters’ true preferences in a close and nationally consequential race in November—the Alaska Supreme Court erroneously assumed the state lacked the power to police bad faith candidacy.

Trust courts?

Then again, should we be worried about judges policing good faith? Might their own partisan leanings render them susceptible to bad faith allegations? Perhaps. But an independent judiciary is the best backstop we’ve got. 

Just as we rely on courts to police opportunism when the words of contracts can be manipulated, we rely on judges to examine whether election actors’ conduct undermines the electoral system. Courts are structurally positioned to provide the needed check. 

As in contract, judges need not speculate about democratic actors’ subjective intent to monitor good faith. They look to objective indicators such as timing, inconsistencies, departures from established norms and procedures, self-created administrative obstacles, and evidence of deception. 

We can and should rely on courts to hold democratic actors to account when strong evidence of bad faith is present. 

These days, doing so is a democratic imperative.