Abstract
Evidentiary and substantive presumptions are a well-established tool that courts employ when addressing a variety of legal problems. These presumptions streamline litigation, avoid debate over minor disputes, and ensure that the most important issues can be addressed. But these same presumptions just as frequently close the courthouse doors on meritorious claims and preemptively shut down litigation where a disputed issue exists.
One area this occurs is redistricting. In the last fifty years, the Supreme Court of the United States has expanded its substantive presumptions in redistricting matters to permit facially discriminatory redistricting plans. By invoking the presumption of good faith, the Supreme Court insulates state legislators from their constitutional obligations on dubious grounds.
Invoking a substantive presumption—especially in redistricting—lacks any constitutional, doctrinal, or historical basis. To draw this conclusion, this Article reviews the doctrine, history, and tradition of good faith in the Supreme Court of the United States. It explains how the Court’s understanding of good faith in redistricting matters reflects a significant departure from its good faith jurisprudence—and seems to have been created by accident. It then harmonizes the Court’s earlier good faith doctrines and explains how a substantive presumption for state-based redistricting contravenes the structure, context, and purpose of the Reconstruction Amendments and Constitution itself.
To remedy this incongruous application, this Article examines the constitutional source of a substantive good faith presumption and where (and by whom) it may be properly invoked. By understanding good faith through these parameters, this Article explores the true constitutional interests that a presumption of good faith vindicates.
Recommended Citation
Leonard C. Brahin,
Redistricting and the Origins of the Good Faith Presumption,
30
Barry L. Rev.
1
(2025).
Available at:
https://lawpublications.barry.edu/barrylrev/vol30/iss1/1