As we all know, the Callais reargument potentially poses the momentous question of Section 2’s constitutionality. But it’s worth noting how many steps the Court would have to take to reach that question. Each of these steps represents an offramp for the Court that would allow it to resolve this case without having to address Section 2’s validity.

1. Race or Politics: First off, if the Court concludes that politics better explains District 6’s formation than race, then strict scrutiny wouldn’t apply and the district would almost certainly be constitutional. There’s a good argument that politics — in particular, protecting Republican incumbents Mike Johnson, Steve Scalise, and Julia Letlow, and sacrificing the seat of Garret Graves — is why District 6’s shape is relatively unusual. If one of the other Republican incumbents’ seats had been sacrificed, District 6 could have been substantially more “reasonably configured.”
2. Narrow Tailoring: If the Court determines that District 6 was designed for a racially predominant reason, the Court could still avoid grappling with Section 2’s constitutionality by holding that the district is an insufficiently tailored remedy for any Section 2 violation. Again, District 6 arguably isn’t “reasonably configured,” and the Court has previously said that only a reasonably-compact minority-opportunity district can remedy a Section 2 violation. Per Bush v. Vera, “if a reasonably compact district can be created, nothing in § 2 requires the race-based creation of a district that is far from compact.”
3. Compelling Interest: Lastly, even if the Court rules that race did predominate in the creation of District 6, and that District 6 is narrowly tailored to remedy a Section 2 violation, the Court could still refrain from reaching Section 2’s constitutionality by holding that compliance with Section 2 isn’t a compelling state interest. The Court has long assumed that Section 2 compliance is a compelling interest. But the Court has never actually held as much. And if Section 2 compliance isn’t a compelling interest, then it can’t save a district drawn for a racially predominant reason — and the Court would have no occasion to comment on Section 2’s validity. Note that this resolution of Callais wouldn’t bar future Section 2 vote dilution claims since it wouldn’t change any aspect of the Gingles framework. Nor would it mean that any vote dilution remedy is necessarily an unlawful racial gerrymander. As Chief Justice Roberts made clear in Milligan, the critical line as far as racial gerrymandering is concerned is “between [race] consciousness and [racial] predominance.” Both plaintiffs’ demonstrative maps at Gingles‘s first step and jurisdictions’ ultimate remedies can — and should — exhibit race-consciousness but not racial predominance, in which they don’t trigger strict scrutiny.

Of course, if the Court is intent on addressing Section 2’s constitutionality, it can find a way to do so. The point here is just that the Court has several options at its disposal that wouldn’t raise the stakes in Callais to the maximum possible size. (Disclosure: Other attorneys in HLS’s Election Law Clinic represent the Robinson intervenors in Callais, but I haven’t been involved in that representation.)