dissenting.
I.
“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we *1334ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Spector v. McLaughlin, 323 U.S. 101, 103, 65 S.Ct. 152, 153, 89 L.Ed. 101 (1944). Here we are presented with a case in which the avoidance of a constitutional question is not only possible, it is required by the standing doctrine applicable to racial gerrymandering, or Shaw, claims brought under the equal protection clause of the fourteenth amendment, ■ as announced by the United States Supreme Court in United States v. Hays, 515 U.S. 737, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995). The posture of the Hays plaintiffs vis-a-vis the challenged districting scheme is identical to that of the plaintiffs now before us. The holding in Hays therefore controls this case, and, rather than venture prematurely into difficult constitutional territory, we should do what the Hays Court did and dismiss the plaintiffs’ claims for want of jurisdiction. Accordingly, I dissent.
Though an exhaustive retelling of the facts is unnecessary here, a brief enumeration of the factual similarities between this case and Hays demonstrates quite plainly that the law announced in Hays controls the case now before us. In both cases, the drawing of new state-wide dis-tricting plans led to the creation of new districts whose populations were majority African-American. See Hays, 515 U.S. at 740, 115 S.Ct. at 2434. In both, the evidence demonstrates that the new majority-black districts were drawn primarily to increase representation for the black population in the State. See id. at 745, 115 S.Ct. at 2436. Indeed, no evidence in either case suggests that the racial composition of the neighboring majority-white districts was of any interest or import to the drafters. See id. at 746, 115 S.Ct. at 2437. Finally, the plaintiffs in both cases live not in the new majority-black districts, but rather in the neighboring districts that are majority white. See id. at 742, 115 S.Ct. at 2434.
In Hays, the Court began with the “now well settled” principle “that ‘the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.’ ” 515 U.S. at 742-743, 115 S.Ct. at 2435 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 2136, 2137, 119 L.Ed.2d 351 (1992) (footnote, citations, and internal quotation marks omitted)). The Court continued, “The rule against generalized grievances applies with as much force in the equal protection context as in any other.” Id. at 743, 115 S.Ct. at 2435. The Hays Court then held that the plaintiffs before it lacked standing because they met neither of two alternative showings: that they “live in the district that is the primary focus of their racial gerrymandering claim,” or that they have “otherwise demonstrated that they, personally, .have been subjected to a racial classification.” Id. at 739, 115 S.Ct. at 2433 (em- • phasis added).
Which alternative showing a plaintiff desires to make is critical to whether the plaintiff has to make an additional factual showing of personal injury to. establish standing. A plaintiff who resides in and is challenging the- racially gerrymandered district that is the primary focus of the litigation is presumed to have suffered a personal injury in fact, see id. at 744-45, 115 S.Ct. at 2436, for such person “has been denied equal treatment because of the legislature’s reliance on racial criteria, and therefore has standing to challenge the legislature’s action.” See id. at 745, 115 S.Ct. at 2436. All other citizens in the State, including those who live in and are challenging neighboring districts, do not enjoy such a presumption, and must produce specific evidence that they have suffered personal and individualized harm resulting from the racial gerrymander, see *1335id. at 745, 115 S.Ct. at 2436; this is because, unlike the in-district plaintiff who “may suffer the special representational harms racial classifications can cause in the voting context,” such out-of-district plaintiff ■ “does not suffer those special harms, and any inference that the plaintiff has personally been subjected to a racial classification would not be justified absent specific evidence tending to support that inference. Unless such evidence is present, that plaintiff would be asserting only a generalized grievance against governmental conduct of which he or she does not approve.” See id. at 745, 115 S.Ct. at 2436.
Hays’s punch line, therefore, is that (1), if the plaintiff lives in and is challenging the district that is the primary focus of the racial gerrymander, he enjoys the personal injury presumption; but (2), if the plaintiff lives in and is challenging any other district in the State, he does not enjoy this presumption and must produce specific evidence that he has suffered personal and individualized harm resulting from the racial gerrymander.
Here, as I understand it, the plaintiffs contend that they have satisfied the first of the above alternative showings, and it is apparent that the majority understands the same because, according to the majority, “injury-in-fact is conclusively presumed” for the plaintiffs. Ante at 1305. Hays, therefore, dictates that we first determine exactly which districts are the “primary focus” of the plaintiffs’ racial gerrymandering claims. Until we know which districts are the “primary focus” of the plaintiffs’ Shaw claims and unless the plaintiffs actually reside in these districts, we should not address their claims.
According to the majority, this case and Hays differ fundamentally in that the Hays plaintiffs challenged the majority-black districts in which they did not reside, while the plaintiffs in the current case challenge only the districts of which they are residents. It reaches this conclusion by comparing the Supreme Court decision in Hays to the language of the plaintiffs’ complaint here, which attempts to drive a narrow but critical wedge between the posture of the plaintiffs in this case and in Hays. Here, essentially, is where I part company with the majority. Rather than relying purely on the plaintiffs’ framing of their claims in determining whether they have standing, we should look behind their semantics and,focus on the substance of their equal-protection claims.
First, the Supreme Court’s approach to identifying the target of the plaintiffs’ challenge in Hays provides no support for the pleading method the majority now advocates. The majority writes that this “look to the complaint” approach, ante, at 1303, “sav[es] us from floundering in the vagueness of the infinitely manipulable term ‘primary focus.’ ” Id. The majority then explains: “[W]e read Hays in its simplest terms, arbitrary as that may seem to academia: a Shaw plaintiff can satisfy the first element of Article III standing, injury-in-fact, by showing (1) that he lives in the district he challenges and (2) that the district is ‘racially gerrymandered.’ ” Id. at 1303-04.
But, simply put, the majority’s complaint approach is directly belied ■ by Hays’s holding. Had the Hays Court focused on the plaintiffs’ complaint, which, as even the majority admits, was framed as an attack on the state-wide districting scheme as a whole and thus on the district in which the plaintiffs lived, and had the Court intended that facial allegations would be sufficient, the Court would have then proceeded to address the constitutional question of the moment — whether the district was racially gerrymandered. But the Court did not, and the critical question is, Why not? The Hays Court did not because, rather than relying on the allegations in the complaint, it sought first to determine what the “primary focus” of the litigation was, Hays, 515 U.S. at 739, 115 S.Ct. at 2433, and, after determining that that focus was not on the district that plaintiffs were challenging, it then sought to determine whether the plaintiffs had demonstrated *1336personal and individualized injury. See id. The fact that the Hays plaintiffs characterized their claim as a challenge to all the districts (and thus their own district) did not carry the day. The district that a plaintiff, claims to be ‘challenging’ is not necessarily the district that is the ‘primary focus’, of the litigation (as, indeed, the Hays Court found in the case before it), for a determination of the latter demands a factual and detailed inquiry by the court into the evidentiary record. A plaintiff has standing when the district claimed to be challenged by the plaintiff and the primary focus district (as found by the court from its own independent review of the evidence) end up being the same district, because in such instance the plaintiff would be presumed to have suffered an injury in fact. If a plaintiff says that he is challenging one district but the evidence reveals that the primary focus of his challenge is on another district, then the plaintiff would lack standing to pursue that challenge unless he meets Hays’s alternative showing requirement of an individualized harm, because in such instance there would be no presumption of an injury in fact.
In my view, the majority goes astray because it fails to recognize this important difference, for by simply looking- at the districts the plaintiffs here say they are challenging and allowing them the benefit of the injury-in-fact presumption, without making the additional determination that these districts are also the primary focus of their claims, the majority improperly allows the plaintiffs to enjoy the presumption, when in such instances, according to Hays, there should be no injury presumption and the plaintiffs should be required to make an individualized showing of harm. In other words, by allowing residents, of districts, that the court has not found to be the primary focus of the racial gerrymander, the benefit of-the personal injury-in-fact presumption, the majority improperly conflates, and confuses, the ways the Hays Court articulated that Shaw claim standing can be established.
“Vague” or “infinitely manipuláble,” the primary-focus approach is the approach that the Supreme Court has directed that we use in instances such as this where the plaintiffs seek to satisfy the first of Hays’s alternative methods of showing Shaw claim standing and enjoy the injury-in-fact presumption. And “floundering” or not, we must follow that directive and undertake the task. We cannot be “saved” from it; we cannot avoid it.1
Second, even in the absence of this express directive from Hays, general and well-established standing law would command that we make some factual inquiry, either whether the challenged district is the primary focus of the racial gerrymander if the plaintiff seeks to enjoy the personal injury presumption or whether the plaintiff has suffered individualized, personal injury in all other instances. “It is a long-settled principle that standing cannot be ‘inferred argumentatively from aver-ments in the pleadings,’ but rather ‘must affirmatively appear in the record.’ ” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 608, 107 L.Ed.2d 603 (1990) (quoting Grace v. American Central Ins. Co., 109 U.S. 278, 284, 3 S.Ct. 207, 210, 27 L.Ed. 932, (1883) and Mansfield C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884)); see also Hays, 515 U.S. at 743, 115 S.Ct. at 2435 (“We have also made clear that.‘it is the burden of the “party who seeks the exercise of jurisdiction in his favor,” McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936), “clearly to allege facts demonstrating that he is a proper *1337party to invoke judicial resolution of the dispute.” Warth v. Seldin, 422 U.S. 490, 518, [95 S.Ct. 2197, 2215, 45 L.Ed.2d 343] (1975).’ FW/PBS, supra, at 231, 110 S.Ct., at 607-608. And when a case has proceeded to final judgment after a trial, as this case has, ‘those facts (if controverted) must be “supported adequately by the evidence adduced at trial” ’ to avoid dismissal on standing grounds. Lujan, supra, at 561, 112 S.Ct., at 2137 (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 115, n. 31, 99 S.Ct. 1601, 1616, n. 31, 60 L.Ed.2d 66 (1979)).”).
Thus, the plaintiffs’ bald conclusions that they are challenging their own districts or that they have standing to sue do not automatically create jurisdiction, but rather must be supported by evidence in the record. Likewise, this court must examine the evidence supporting the plaintiffs’ assertions and assess its adequacy, rather than taking the allegations purely at face value.
The majority attempts to support its pleadings approach through cursory, and I believe misplaced, references to two of the • Federal Rules of Civil Procedure. These rules, it asserts, require the court to consider the plaintiffs’ complaint at face value, and preclude any closer look into the standing issue. First the majority cites Rule 8(a), which requires that every plaintiff include in his complaint a statement of the basis for federal court jurisdiction, a statement of the grounds upon which relief may be granted, and a demand for relief. The purpose of this rule is to reduce the burden on plaintiffs to define their claims with unreasonable specificity and technical precision. See, e.g., Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (“The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.”) The majority also references Rule 16(e), which limits the issues in a case to those delineated in the pretrial order. If there were a pretrial order in this case, Rule 16(e) would require the court to consider only those issues set forth in such order. However, it is quite a stretch to infer from these two rules that the court is limited in its standing analysis to allegations in pleadings. And, in any event, these rules do not, and cannot, overrule Supreme Court constitutional precedent.
In the case before us, as in Hays, this deeper inquiry into the evidence behind the plaintiffs’ claims reveals that their primary focus is to attack the majority-black districts that neighbor their own, rather than to challenge only their own districts or to vindicate their own right to equal protection of the laws. The plaintiffs have failed to produce even a shred of evidence demonstrating that the drafters of the current legislative districting plan formed an independent intent to place whites in their districts or consciously created white-majority districts to achieve personal or political ends. Nor have they provided any specific evidence suggesting that they personally were placed in their districts because of race. Rather, the plaintiffs’ objection is to the deliberate creation of majority-black districts for the purpose of increasing black voting power in Alabama. The creation of these majority-black districts necessarily caused the neighboring districts to change shape, admittedly quite substantially at times, and resulting in rather irregular boundaries. Nonetheless,, the only sense in which the plaintiffs object to the way their own districts were drawn is insofar as their districts represent.the negative space out of which the objectionable majority-black districts were carved.
The evidence presented in support of each plaintiffs claims strengthens this conclusion. Plaintiff Ricardo Montiel’s objections to SD 21 focus on the portions of Tuscaloosa County included in neighboring majority-black SD 24 and therefore necessarily left out of his own district. His objections to the shape of HD 63 focus on the same portions of Tuscaloosa, which were.placed in majority-black HD 70 rath*1338er than in his own district. Plaintiffs Daniel Brown and Genae Spinks, who reside in SD 25, object to their own district only to the extent that it was shaped by the race-conscious drawing of neighboring SD 26. Spinks’s challenge to HD 75 primarily alleges that her district should have included areas that were instead placed in HD 76 for racial reasons. Plaintiffs Peggy Kelley and Karen Outlaw purport to object to SD 30, but the focus of their claim is the racially-motivated drawing of SD 23 in Lowndes County, and of SD 29 in Dale County. While nominally objecting to HD 89 and HD 86, plaintiffs Karen Outlaw and Bibb Gunter complain primarily of how the shape of their districts was dictated by the drawing of neighboring majority-black HD 85. Finally, plaintiff Gonzalo Montiel’s only, objection to his SD 34 is that portions of Mobile County that he thought should have been in his district were instead placed in SD 33 to bolster the black majority there.
Perhaps the one exception to this pattern of objecting primarily to the shape of the neighboring majority-black districts, rather than to any race-conscious motive in the drawing of their own districts, is .plaintiff Bibb Gunter’s claim with respect to SD 29. Rather than complaining primarily of a.different district next door to his own, Gunter’s complaint, though framed as a challenge to his senate district, is really an attack on one of the house districts nested in his senate district, but in which he does not live. Gunter raises no objection to the way SD 29 as a whole was drawn. Instead, he complains exclusively of the formation of HD 85, which forms part of SD 29 only because HD 85 happens to be nested with HD 86 and HD 87. Though framed slightly differently from the other plaintiffs’ claims, the result is the same. At base, Gunter is a non-resident of the district that forms the primary focus of his racial gerrymandering claim.
Finally, that the primary focus of this litigation is the majority-black districts is revealed by the very words the majority uses to explain and examine the plaintiffs’ claims.. The majority admits that the majority-black districts are the “targeted districts” of the alleged racial gerrymander, and the plaintiffs’ districts are the “next door districts.” Ante at 1307, passim. It admits that the purpose of the state-wide redistricting plan was to create safe majority-black, and not safe majority-white, districts. See ante at 1310-11.
Nevertheless, the majority attempts to get around the fact that the primary focus of this litigation is on the majority-black districts by arguing that “next door districts are not necessarily just leftovers.” Ante at 1307. The majority explains: “The act of segregation, not racial composition alone, inflicts the constitutional harm....' The .drawing of lines does not happen to a single equal-population district in isolation. A line drawn to achieve a certain racial composition in target district X also outlines next-door district Y; the placement of certain population in district X rather than district Y leads Y to look elsewhere for people; and so on in a series of ripple effects that diminish as you move away from the target district. These ripple effects may in the end not be racial. But close enough to ‘ground zero’ there may be enough race-tainted ripple effects (for instance, the division of a neighborhood along racial lines that leave whites in the next-door district and blacks in the target district) that we can fairly say that race predominated in the district’s peopling.” Ante at 1307-08.
This argument boils down to the contention (and a superficially attractive one at that I must admit) that you cannot segregate on one side of the line without segregating on other side — that is, you cannot segregate blacks into majority-black districts without segregating whites into neighboring districts. Or, to put it more figuratively, you cannot separate the goats from the sheep without separating the sheep from the goats as well.
But, for two reasons, this approach to standing in Shaw cases is inappropriate in light of Hays. First, this approach is not the approach imposed in Hays, and, sec*1339ond, Hays expressly rejects it. In Hays, the Supreme Court sought to draw a legal bright line between those who live in and are challenging the district that is the primary focus.or target of the racial gerrymander (and who thus enjoy an injury-in-fact presumption) and all others in the State who do not live in and are not challenging that district (and who thus must demonstrate personal, individualized harm). It is therefore true that “next door districts are not necessarily just leftovers,” ante at 1307, but rather, for these districts’ residents to establish standing, they must present specific evidence of personal harm resulting from the racial gerrymander.
Moreover, with regard to the latter group, and in particular those who live in a neighboring district (as the plaintiffs do here), the Supreme Court expressly rejected the segregation or neighboring-district or ripple-effect argument now advanced by the majority. The Court wrote:
“Appellees urge, that District 5 [the next-door district] is a ‘segregated’ voting district, and thus that their position is no different from that of a student in a segregated school, district. But even assuming, arguendo, that the evidence in this litigation is enough to state a Shaw claim with respect to District 4, that does not prove anything about the legislature’s intentions with respect to District 5, nor does the record appear to reflect that the legislature intended Dis- , trict 5 to have any particular racial composition. .Of course, it may be true that the racial composition of District 5 would have been different if the legislature had drawn District 4 in another way. But an allegation to that effect does not allege a cognizable injury under the Fourteenth Amendment. We have never held that the racial composition of a particular voting district, without more, can violate the Constitution.”
Hays, 515 U.S. at 746, 115 S.Ct. at 2436-2437 (citations omitted). Many arguments can be made to explain why the Court said what it said. For example, when the litigation reveals that the “primary focus” of the legislative plan is the intentional creation of majority-black districts, and not the incidental creation of neighboring white districts, the residents from the majority-black districts should be the only ones to benefit from the injury-in-fact presumption, for they are the ones who are the true objects of the alleged unconstitutional acts; those living in the neighboring district should have to make the personal, individualized showing of injury. See Hays, 515 U.S. at 745, 115 S.Ct. at 2436 (Voters in districts that are the target of the racial gerrymander “may suffer the special representational harms racial classifications can cause in the voting context. On the other hand, where a plaintiff does not live in such a district, he or she does not suffer those special harms, and any inference that the plaintiff has personally been subjected to a racial classification would not be justified absent specific evidence tending to support that inference. Unless such evidence is present, that plaintiff would be asserting only a generalized grievance against governmental conduct of which he or she does not approve.”). In contrast with the Supreme Court’s effort to rein in standing in Shaw cases, the majority’s approach would open up standing to voters all across the state, or, at least, to voters all across the state claiming- standing, without having to show, at a minimum, any personal and individualized injury.
But such arguments, I admit, are all beside the point. As stated, the Supreme Court in Hays rejected the majority’s segregation or neighboring-district or ripple-effect argument. And moreover, in the Shaw cases since Hays where the plaintiffs have not sought to show personal injury, the plaintiffs, as the majority acknowledges, “resided in the majority-black or majority-Hispanic district that was the target and. goal of the racial gerrymander.” Ante at 1307. In Bush v. Vera, 517 U.S. 952, 957-958, 116 S.Ct. 1941, 1951, 135 L.Ed.2d 248 (1996), the Court applied Hays and held that the plaintiffs had standing because they lived in the targeted districts of the racial gerrymander. And, *1340more to the point, if not on point, in Shaw v. Hunt, 517 U.S. 899, 904, 116 S.Ct. 1894, 1900, 135 L.Ed.2d 207 (1996), in applying Hays again, the Court held that the plaintiffs who lived in the targeted districts of the racial gerrymander had standing, and those who did not live in those districts lacked standing.
To be sure, as previously stated, according to Hays, even plaintiffs who live outside the district that is the primary focus of the litigation could have standing if “they have ... otherwise demonstrated that they, personally, have been subjected to a racial classification.” 515 U.S. at 739, 115 S.Ct. at 2433. But here, the plaintiffs have not established such injury, and the majority does not even maintain that they have.
II.
Because the record in this case, even as summed up by the majority in its opinion, reflects that the “primary focus” of this litigation is the targeted, safe majority-black districts, and because the plaintiffs here do not reside in those districts and have not otherwise established personal and individualized injury resulting from the alleged racial gerrymander, this case should be dismissed. Nevertheless, there are other compelling reasons why this court should not reach the merits of this case and should instead dismiss it.
The only relief afforded by the majority is that the plaintiffs “are due an injunction against future use of unconstitutional districts, even for special elections.” Ante at 1323.2 And this relief is further qualified with the statement that, because “the State has a legitimate interest in avoiding the expense of redistricting for a single special election in these districts, should one become necessary because of an expected vacancy,” id., the court will not necessarily order a new redistricting plan. The majority explains: “[I]n the event a special election should become necessary in any of the unconstitutional districts, the court will at that time hear from the parties, consider all the circumstances then existing, and determine the appropriate relief.” Id.
What the majority gives here is no substantive relief at all. First of all, the State of Alabama is already under a constitutional obligation to redistrict its legislature based on the 2000 census. See Reynolds v. Sims, 377 U.S. 533, 568, 584, 84 S.Ct. 1362, 1385, 1393, 12 L.Ed.2d 506 (1964) (holding that the equal protection clause requires States to draw their legislative districts based on population data, and that the use of data more than ten years old for such purposes is “constitutionally suspect.”); Ala. Const.1901, §§ 198-200 (providing that the state legislature will redraw election districts in the next session after the taking of each decennial census). To say that the State cannot, in the next regular elections, use the seven districts found by the court to be unconstitutional is mere surplusage. And for the court to speculate that the State may not redistrict itself in time for the 2002 elections is just that — speculation; and, in any event, any failure by the State to meet its redistricting obligations should be addressed by another court convened after the fact and presented with concrete facts — in other words, a court actually confronted with a “case or controversy” in which a plaintiff alleges a current failure to redistrict.
Second, it is most unlikely that there will be a vacancy warranting a special election in one or more of these seven districts between now and when the legislature redistricts itself before 2002, and it is most unlikely that, even if a vacancy occurs, this court would order redistricting, a remedy that would surely necessi*1341tate special elections, first, for not only the vacant district but all surrounding districts that would be affected by the redistricting, and, second, within ,a year or so before regular state-wide redistricting. The special-election relief ordered by the majority is based on an unlikely possibility based on another unlikely possibility, the first unlikely possibility being that there will be a vacancy in one of these districts in the very short time left in the present election cycle, and the second one being that, even if such a vacancy occurred, a court would order the State to engage in the redistricting of several districts just before it is going to have to engage in state-wide redistricting anyway.,
Moreover, the injury essentially identified by the majority in the relief ordered- — ■ no future elections under the plan — is a curious injury. The majority’s prohibition on future elections suggests that it has in mind an injury that occurs on election day. But, if these districts are really racially gerrymandered the injury is ongoing and persists as long as the districts remain in place, regardless as to whether there are vacancies and regardless as to whether the current officeholders represent the districts or different persons do so as a result of vacancies.
Whether the issue is viewed as one of mootness (no effective remedy is available at this time) or issue preclusion (the deeision of the Alabama Supreme Court in a parallel case, that Shaw challenges to districts in the current legislative redistricting scheme are moot, precludes relitigation of such challenges here),3 the bottom line is that the Alabama Supreme Court was right in rejecting a similar challenge to the districting plan now before us: the current redistricting plan is too near the end of its life to afford any effective substantive relief. See Rice v. Sinkfield, 732 So.2d 993 (Ala.1998).4 And the empty relief ordered by the court today dramatically demonstrates the unassailability of that conclusion.5 One day, one month, and even one year, after the court enters its final order today, the status quo will remain; nothing will have changed. See Lewis v. Continental Bank Corp., 494 U.S. 472, 478, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990) (“Article III ... confines [federal courts] to resolving ‘real and substantial controversies] admitting of1 specific relief through a decree of a conclusive character.’ ”) (quoting Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937)); Colegrove v. Green, 328 U.S. 549, 565, 66 S.Ct. 1198, 1208-1209, 90 L.Ed. 1432 (1946) (Rutledge, J., concurring) (dismissal of complaint by trial court should be affirmed because, “The shortness of the time remaining (before forthcoming elections) makes it doubtful whether action could, or would, be tak*1342en in time to secure for petitioners the effective relief they seek”)-6
The relief here is non-substantive only— that is, it does not address the substance of claims presented. When all is said and done, the reality here is that all the plaintiffs will get from this court and from this litigation is their attorneys’ fees and expenses from the defendants.
* * * Hi * *
In conclusion, the redistricting plan before this court, the Reed-Buskey Plan, presents serious questions as to whether some of its majority-black districts are racially gerrymandered in violation of the fourteenth amendment. But for two reasons this case is not the one in which those questions should be answered, and thus it should be dismissed. First, Hays dictates that these plaintiffs are simply not the ones who can pursue the questions in *1343court; and, second, even if they were, because these questions are presented so late, we cannot give effective relief.7 Should the current majority-black districts, in whole or in part, survive the upcoming redistricting by the State for the 2002 elections, the issue of whether those districts are constitutional should be for another court to decide in another case presented by residents of those districts.
. The majority says that this case is "apparently unique among the Shaw cases in that we have white plaintiffs challenging majority-white districts that are next door to engineered minority 'safe seats.' ” Ante at 1303-04. This case is not unique. Hays involved plaintiffs, at least one of whom was white, "challenging majority-white districts that are next door to engineered minority 'safe seats,' " and the Supreme Court simply said they all lacked standing.
. In the final judgment and injunction the court enters today, the only relief ordered is that, "The defendant James Bennett, as Secretary of the State of Alabama, and his successors in office are ENJOINED from conducting any election for a representative to the Alabama House of Representatives from House Districts 63, 75, or 86, and from conducting any election for a senator of the Alabama Senate from Senate Districts 21, 25, 29, or 30, without the prior approval of this court."
. The majority curiously states, on the one hand, that the Alabama Supreme Court’s mootness holding is not preclusive because that court did not consider that the "Reed-Buskey Plan may ... serve as the starting point for the next reapportionment,” ante at 1307, and the court then holds, on the other hand, that relief based on the plan serving as a baseline measure in the upcoming redistricting would be too speculative. See id. at 1323. If the relief that would address this concern is too speculative, then the concern should not serve as a basis for rejecting the Alabama Supreme Court's decision as preclu-sive.
. In Rice v. Sinkfield, the Alabama Supreme Court wrote:
"By that time, the report of the 2000 federal census is scheduled to be released, and we must assume that the Legislature will timely fulfill its constitutional duty to redraw -legislative districts based on that census. Thus, we must conclude that the elections held in 2002 and subsequent- years will be governed not by the current consent judgment, but by a new districting plan that is based on the 2000 federal census. Because we must assume that any potential modification of the current consent judgment based on the 1990 census would not affect the outcome of the 2002 legislative election or any successive legislative election, we must -conclude that an effort by this Court to render the relief sought by the ■ plaintiffs would not be effective.”
732 So.2d at 993-994 (citations omitted).
. The refusal to give effective relief based on the exercise of discretion can also render a case moot.
. The majority questions whether "a court's refusal to grant requested relief moots a claim.” Ante at 1307 n. 30. The majority notes that it "declined to order a special election not because one is impossible ■. — it is obviously possible, at great expense to the State— but because the equities do not justify such relief in the circumstances.” Id. If I correctly understand the issue, the majority seems to be saying that mootness would occur only when the relief is impossible, not just when it is imprudent or impractical. I have two responses. First, I think this very restricted understanding of mootness would come as a surprise to most legal scholars. Relief need not be impossible for an issue to be moot. See 13A Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure, § 3533.3 at 276 (for an issue to be moot, "the futility or impossibility of effective relief need not be certain”); see also id. at 275-276 n. 29 (citing and discussing cases finding mootness based on "remedial unwillingness,” not impossibility). Nor is it necessarily problematic that the refusal to afford relief is based on discretion. See id., § 3533.1 at 214-215 (One of the "three doctrinal foundations” upon which "[mjootness principles rest” is that "Remedial discretion is often relied upon to determine that the prospective benefit of an injunction, declaratory judgment, or other specific remedy is too slight to justify decision.”); id., § 3533.3 at 261 ("[Ljittle is gained by struggling with the distinctions between the mootness that arises from Article III and that which results from remedial discretion.”); see also id. at 275-276 n. 29 (citing and discussing cases finding mootness based on the exercise of remedial discrimination). Indeed, in Rice v. Sinkfield, 732 So.2d 993 (Ala.1998), the Alabama Supreme Court could have, after addressing the merits of the Shaw claims, ordered redistricting; it was not 'impossible' in an absolute sense. Instead, the court essentially found that such relief was impractical and imprudent and dismissed the appeal as moot.
Second, it is not so "obvious” that special elections would at this stage be possible before the next scheduled election, even without regard to the financial and political burdens they would impose upon the State and individual legislators. Several state officials, including Senators Dixon and Mitchell and Secretary of State Bennett testified about the length and difficulty of the districting process, thereby calling into question whether the redrawing of district lines and the administration of special elections would be physically possible before campaigns begin for the 2002 elections. Even more troubling, however, is the fact that the only census data currently available to the legislature and the court for the purpose of redistricting is now fully ten years old. To draw new districts based on such stale population data would not be merely unadvisable based on "the equities,” it would likely be unconstitutional. See Reynolds v. Sims, 377 U.S. 533, 568, 584, 84 S.Ct. 1362, 1385, 1393, 12 L.Ed.2d 506 (1964) (holding that the equal protection clause requires States to draw their legislative districts based on population data, and that the use of data more than ten years old for such purposes is "constitutionally suspect.”). The majority does not make clear how it determines whether a remedy is "possible,” but surely it would agree that an unconstitutional remedy is squarely within the realm of the impossible.
The majority also seems to question whether it is appropriate to dismiss a case as moot after the case has been heard on the merits. Again, I have two responses. First, the defendants have pressed their mootness argument from the beginning of this aspect of this litigation. The issue is being addressed now only because we have waited until now to address it. Second, and perhaps more importantly, the “case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). That the plaintiffs' claims may have become moot after hearing all the evidence is of no consequence here.
. I must admit that in some earlier orders I agreed to the dismissal of some of the plaintiffs’ claims on the merits. ■. This was in error. These claims should have been dismissed on standing or mootness grounds.