          Case: 14-11202   Date Filed: 01/07/2015   Page: 1 of 26




                                                                    [PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                       Nos. 14-11202 & 14-11204
                      ________________________

                  D.C. Docket No. 3:11-cv-00123-TCB



GEORGIA STATE CONFERENCE OF THE NAACP, et al.,

                                             Plaintiffs - Appellees,

versus

FAYETTE COUNTY BOARD OF COMMISSIONERS, et al.,

                                             Defendants - Appellants,

FAYETTE COUNTY BOARD OF EDUCATION, et al.,

                                             Defendants - Appellants.

                      ________________________

              Appeals from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (January 7, 2015)
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Before WILSON and ROSENBAUM, Circuit Judges, and CONWAY, ∗ District
Judge.

WILSON, Circuit Judge:

       At the time this suit commenced, no African-American candidate had ever

been elected to either the Fayette County Board of Commissioners (BOC) or the

Fayette County Board of Education (BOE) in Fayette County, Georgia. The

Georgia State Conference of the NAACP, the Fayette County Branch of the

NAACP, and ten individual African-American registered voters residing in Fayette

County (collectively, Appellees) averred that Fayette County’s at-large election

system violated Section Two (§ 2) of the Voting Rights Act (VRA) 1 by effectively

guaranteeing that no African-American would be able to participate in the political

process through election to the BOC or the BOE, nor would African-American

voters be able to elect representatives of their choice to either entity. 2 Appellees

contended that a districting plan including a single majority-minority district would




       ∗
         Honorable Anne C. Conway, Chief United States District Judge for the Middle District
of Florida, sitting by designation.
       1
           Voting Rights Act of 1965, § 2, 52 U.S.C. §10301 (formerly cited as 42 U.S.C. § 1973).
       2
         Defendants-Appellants include the BOC and its members in their official capacities; the
Fayette County Board of Elections and Voter Registration and its department head; and the BOE
and its members in their official capacities (collectively, Appellants). The BOC and the BOE
appealed the district court’s judgment separately (in Case Nos. 14-11202 and 14-11204,
respectively), but their appeals originated from the same case in the district court. After
reviewing the parties’ briefs and hearing oral argument from all sides, we address both appeals
together in this opinion.
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provide African-Americans the opportunity for meaningful political participation

and the ability to elect candidates of their choice to both boards.

       After considering cross-motions for summary judgment from Appellees and

the BOC, the court below entered summary judgment in Appellees’ favor, finding

the at-large election method used by both the BOC and BOE resulted in

impermissible vote dilution. 3 In so doing, the district court failed to notice the

BOE that it was considering awarding summary judgment against it; additionally,

the court weighed the evidence submitted by the moving parties, accepting the

support proffered by Appellees and rejecting the contrary evidence presented by

the BOC. Thus, without opining as to the correctness of the court’s substantive

conclusions, we find that the district erred in rendering its § 2 determination on

summary judgment. We therefore vacate and remand the district court’s entry of

summary judgment against the BOC and the BOE for further proceedings in

accordance with this opinion. 4


       3
          “Vote dilution” refers to the effect of election methods that dilute the voting strength of
racial minority voters in the larger voting population; this constitutes a violation when plaintiffs
prove that the “electoral structure operates to minimize or cancel out [minority voters’] ability to
elect their preferred candidates.” See Thornburg v. Gingles, 478 U.S. 30, 47–48, 106 S. Ct.
2752, 2764–65 (1986) (noting that at-large voting schemes—while not per se violative of
minority voters’ rights—have long been recognized by the Supreme Court as having the
potential to dilute minority votes). “The theoretical basis for this type of impairment is that
where minority and majority voters consistently prefer different candidates, the majority, by
virtue of its numerical superiority, will regularly defeat the choices of minority voters.” Id. at 48,
106 S. Ct. at 2765.
       4
        To the extent Appellants contest the district court’s denial of summary judgment against
Appellees, we AFFIRM the district court’s denial of the BOC’s motion for summary judgment,
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                         I. PROCEDURAL BACKGROUND

       Located in Northwest Georgia, Fayette County has a population of 106,567

and a voting-age population of 78,468, out of which 57,766 (73.6%) voters identify

as white, and 15,247 (19.5%) identify as African-American, according to the 2010

decennial census relied on by the parties. The African-American population is

largely concentrated in the northern half of Fayette County. The BOC and the

BOE are governing bodies in Fayette County; both boards are comprised of five

elected members who each serve staggered, four-year terms. At the time of suit,

both the BOC and the BOE used an at-large election system to fill seats.

Candidates running for one of the seats had to reside in a geographic district

corresponding to a seat number, but to be elected to a seat, the candidate had to

win a general election in the county. Consequently, to represent the district in

which he or she resided, a candidate had to receive a majority of the votes from the

county as a whole.

       Despite being the preferred candidates of African-American voters in

countywide elections, no African-American candidates had ever been elected to the



as the BOC neither produced “affirmative evidence demonstrating that [the Appellees] will be
unable to prove [their] case at trial,” nor showed that “there [was] an absence of evidence”
supporting Appellees’ case. See United States v. Four Parcels of Real Prop., 941 F.2d 1428,
1438 (11th Cir. 1991). To the contrary, although we remand because, among other reasons, the
district court should not have weighed the evidence on summary judgment, the district court
made abundantly clear in its comprehensive opinion that the substantial weight of that evidence
favored Appellees.
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BOC or the BOE, regardless of the candidates’ respective qualifications or party

affiliation.5 Voters’ candidate preferences in general elections were racially

polarized, with African-American voters preferring African-American candidates

and non-African-American voters preferring white candidates. After

unsuccessfully advocating for district voting, Appellees filed suit against the BOE

and its members, the BOC and its members, and the Fayette County Board of

Elections and Voter Registration and its department head. Appellees’ sole claim

was that Fayette County’s at-large method of electing members to the BOC and the

BOE constituted vote dilution in violation of § 2 of the VRA.

       The Appellees and the BOE immediately began settlement negotiations. On

February 20, 2012, Appellees and the BOE filed a motion for approval of a

proposed consent decree, requesting that the district court adopt the BOE

redistricting plan contained therein (the BOE plan). However, the BOC opposed

the consent decree and argued that (1) the remedy to which the BOE and Appellees

agreed was not authorized by law, and (2) the district court did not have authority

to impose a redistricting plan absent the finding of a § 2 violation. Consequently,

the district court ordered the parties to brief the issues and scheduled a hearing on



       5
          By way of example, in one BOC election, three Republican candidates ran for a vacant
seat on the BOC, including two African-American candidates—one of whom was vice-chairman
of the County Republican Party—and one white candidate, who was a newly registered voter.
The non-minority candidate defeated all African-American candidates without a runoff in the at-
large election.
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the matter. Prior to the hearing, on May 2, 2012, Appellees and the BOE

submitted an amended proposed consent decree, in which the BOE admitted that

the at-large election method of electing members violated § 2 of the VRA.

      After hearing arguments from all parties, the district court rejected the

amended proposed consent decree, as the BOE plan did not include the majority-

minority district required to remedy impermissible vote dilution (instead, the BOE

plan created a district with an African-American voting-age population of only

46.2%). Following the court’s denial of the motion to approve the amended

consent decree, Appellees and the BOC proceeded to discovery, with both sides

taking multiple depositions. The BOE, although receiving notice of discovery

proceedings, did not attend depositions or otherwise participate in discovery.

Meanwhile, Appellees filed a 28 U.S.C. § 1292(b) motion to certify an

interlocutory appeal with regard to the court’s decision denying the BOE and

Appellees’ motion to approve the consent decree.

      At the close of discovery, the BOC and Appellees cross-moved for summary

judgment (on September 13 and 14, 2012, respectively). By its own terms,

Appellees’ summary-judgment motion was directed solely against the BOC, as

Appellees’ § 1292(b) motion regarding the district court’s denial of the proposed

consent order filed by Appellees and the BOE was still pending. Subsequently, on

September 18, 2012, the district court entered an order denying Appellees’ §


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1292(b) motion. On the same day, in a separate order, the court denied a joint

request for a discovery extension previously filed by Appellees and the BOE.

Although all previously pending motions related to the BOE were now resolved,

Appellees did not amend their summary judgment motion to include the BOE.

      On May 21, 2013, the district court entered an eighty-one-page opinion

denying the BOC summary judgment and granting Appellees summary judgment

against both the BOC and the BOE. In the opinion, the district court, applying the

framework set forth in Thornburg v. Gingles, determined the at-large voting

system for the BOC and BOE elections violated § 2 of the VRA. The district court

noted that “[t]he [BOE], having conceded the existence of a [§] 2 violation, did not

participate in discovery or the current [summary judgment] motions”; however,

based on the court’s determination and the BOE’s “admission of liability,” the

court entered summary judgment against the BOE as well, ordering all parties to

submit proposed remedial plans for the BOC and BOE elections.

      Immediately thereafter, the BOC moved to certify an interlocutory appeal of

four issues related to the district court’s entry of summary judgment and to stay the

case pending appeal. The district court denied leave, finding that there was no

“controlling question of law as to which there [wa]s substantial ground for

difference of opinion.” See 28 U.S.C. § 1292(b).




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      After receiving the parties’ proposed remedial plans as ordered in its

summary judgment opinion, the district court engaged an independent technical

expert advisor to develop an appropriate remedy for the § 2 violation. On January

24, 2014, the parties received the district court’s proposed remedial plan developed

in consultation with the expert advisor (the court-drawn remedial plan) in an order

setting a hearing and requesting written responses in opposition to the plan. After

a hearing, the district court entered an order: (1) enjoining elections under at-large

voting, and (2) adopting the court-drawn remedial plan for both the BOC and the

BOE. The district court then entered final judgment and ordered the BOC and the

BOE to promptly implement the court-drawn remedial plan.

      This appeal ensued, in which the BOC and the BOE appeal the district

court’s entry of summary judgment; specifically, the district court’s finding of a §

2 violation. The BOE also appeals the entry of summary judgment against it in

particular, as a non-moving, non-noticed party, and the district court’s imposition

of the court-drawn remedial plan.

                            II. LEGAL FRAMEWORK

A. Nature of Claims brought under § 2 of the Voting Rights Act

      Appellees initiated their suit under § 2 of the VRA. The VRA was put in

place “to help effectuate the Fifteenth Amendment’s guarantee that no citizen’s

right to vote shall ‘be denied or abridged . . . on account of race, color, or previous


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condition of servitude.” Voinovich v. Quilter, 507 U.S. 146, 152, 113 S. Ct. 1149,

1154–55 (1993) (alteration in original) (quoting U.S. Const. amend. XV, § 1).

Specifically, § 2 of the VRA “prohibits any State or political subdivision from

imposing any electoral practice which results in a denial or abridgement of the

right of any citizen of the United States to vote on account of race or color.” Perry

v. Perez, 565 U.S. ___, 132 S. Ct. 934, 940 n.1 (2012) (per curiam) (internal

quotation marks omitted). Thus, a § 2 violation is established:

             [I]f, based on the totality of circumstances, it is shown
             that the political processes leading to nomination or
             election in the State or political subdivision are not
             equally open to participation by members of [a racial
             minority group] . . . in that its members have less
             opportunity than other members of the electorate to
             participate in the political process and to elect
             representatives of their choice.

Gingles, 478 U.S. at 36, 106 S. Ct. at 2759 (internal quotation marks omitted).

Under the framework set forth by the Supreme Court in Gingles, the seminal § 2

case, plaintiffs must satisfy three threshold requirements to proceed with a vote

dilution claim: (1) the minority group is “sufficiently large and geographically

compact to constitute a majority in a single-member [voting] district”; (2) the

minority group is “politically cohesive,” and (3) that the “majority votes

sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred

candidate.” See id. at 49–51, 106 S. Ct. at 2766–67.



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      The three Gingles requirements are necessary preconditions, intended “to

help courts determine which claims could meet the totality-of-the-circumstances

standard for a § 2 violation.” Bartlett v. Strickland, 556 U.S. 1, 21, 129 S. Ct.

1231, 1247 (2009). Plaintiffs must prove that the electoral scheme results in a

discriminatory effect. Thus, to establish liability, § 2 plaintiffs must still

demonstrate—after satisfying the three Gingles preconditions—that the totality of

the circumstances results in an unequal opportunity for minority voters to

participate in the political process and to elect representatives of their choosing as

compared to other members of the electorate. See Abrams v. Johnson, 521 U.S.

74, 91, 117 S. Ct. 1925, 1936 (1997). Courts use factors drawn from a report of

the Senate Judiciary Committee accompanying the 1982 amendments to the VRA

(the Senate factors) to make the totality-of-the-circumstances determination. See

Gingles, 478 U.S. at 43–46, 106 S. Ct. 2762–64. The courts are not limited to

considering solely these factors, and the factors are “neither comprehensive nor

exclusive.” Id. at 45, 106 S. Ct. at 2763. Nor is there a requirement that “any

particular number of factors be proved, or that a majority of them point one way or

the other.” Id. (internal quotation marks omitted).

      Although the Supreme Court has made clear that the district courts must

perform this totality-of-the-circumstances analysis, “it will be only the very

unusual case in which the plaintiffs can establish the existence of the three Gingles


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factors but still have failed to establish a violation of § 2 under the totality of

circumstances.” Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103,

1135 (3d Cir. 1993); accord NAACP v. City of Niagara Falls, 65 F.3d 1002, 1019

n.21 (2d Cir. 1995). Rather, the essential inquiry in a § 2 case is “whether the

political process is equally open to minority voters.” Gingles, 478 U.S. at 79, 106

S. Ct. at 2781. A discriminatory result is all that is required; discriminatory intent

is not necessary. See Voinovich, 507 U.S. at 155, 113 S. Ct. at 1156.

B. Summary Judgment Standard

       Normally, claims brought under § 2 of the VRA are resolved pursuant to a

bench trial, with judgment issued under Federal Rule of Civil Procedure 52. We

have found it particularly “important in voting dilution cases that the district court

scrupulously comply with the requirements of [Rule 52(a)] and make findings of

fact and conclusions of law in sufficient detail that the court of appeals can fully

understand the factual and legal basis for the court’s ultimate conclusion.”

McIntosh Cnty. Branch of the NAACP v. City of Darien, 605 F.2d 753, 757 (5th

Cir. 1979).6 This is because “[s]ifting through the conflicting evidence and legal

arguments and applying the correct legal standards is for the district court in the

first instance.” Id. at 759. Thus, “[a]s the Supreme Court and this Court have

       6
         The Eleventh Circuit, sitting en banc, adopted as binding precedent all decisions
rendered by the Fifth Circuit prior to close of business on September 30, 1981. See Bonner v.
City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).


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established, we review the district court’s findings on a Section 2 vote dilution

claim for clear error.” Johnson v. Hamrick, 296 F.3d 1065, 1074 (11th Cir. 2002)

(noting that “[d]eference is afforded the district court’s findings due to its special

vantage point and ability to conduct an intensely local appraisal of the design and

impact of a voting system”).

      Here, however, the district court resolved Appellees’ § 2 claim on summary

judgment, pursuant to Federal Rule of Civil Procedure 56. A basic requirement for

summary judgment is that “there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

When ruling on a summary judgment motion, the court must construe the facts and

draw all rational inferences therefrom in the manner most favorable to the non-

moving party. See Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 1774

(2007). In so doing, “the district court may not weigh the evidence or find facts.”

Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003) (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511 (1986)). Nor may

the court “make credibility determinations of its own.” See FindWhat Investor

Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011). Rather, the court is

“limited to deciding whether there is sufficient evidence upon which a [fact-finder]

could find for the non-moving party.” Morrison, 323 F.3d at 924.




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      Our standard of review is somewhat clouded by the timing of the district

court’s § 2 determination (that is, on motions for summary judgment). In the

context of cases under § 2, “the clearly-erroneous test of Rule 52(a) is the

appropriate standard for appellate review of a finding of vote dilution.” See

Gingles, 478 U.S. at 79, 106 S. Ct. at 2781. However, “[g]enerally, in summary

judgment we review the district court’s legal conclusions de novo.” Meek v.

Metro. Dade Cnty., 908 F.2d 1540, 1544 (11th Cir. 1990); see Johnson v.

Governor of Fl., 405 F.3d 1214, 1217 (11th Cir. 2005) (en banc). “Nevertheless,

we may correct errors of law, including those that may infect a so-called mixed

finding of law and fact, or a finding of fact that is predicated on a

misunderstanding of the governing rule of law.” Meek, 908 F.2d at 1544 (internal

quotation marks omitted).

      Here, having independently reviewed the record, including the parties’

pleadings before the district court, and having considered the parties’ briefs on

appeal in addition to oral argument by all parties, we cannot say that the district

court misconstrued our precedent or reached its conclusions based on a

misunderstanding of the applicable law. Be that as it may, our singular concern—

and thus our sole holding at this time—is that, in reaching those conclusions, the

district court did so (1) without notice to one party, and (2) by weighing the

evidence and making credibility determinations as to the other, both of which are


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inappropriate on summary judgment. Consequently, for reasons set forth in more

detail below, we remand.

                                III. DISCUSSION

      On appeal, Appellants raise several issues, including that the district court’s

entry of summary judgment was procedurally deficient, as, “at the very least[,] the

issues merited a trial with real findings.” Of all the arguments raised by

Appellants, this is the one argument on which we rest our limited remand. We

conclude that the district court’s entry of summary judgment against the BOE and

the BOC was improper, and we address the reasons for each separately.

A. Entry of Summary Judgment against the BOE

      We turn first to the district court’s grant of summary judgment against the

BOE. It is undisputed that Appellees did not move for summary judgment against

the BOE; indeed, Appellees expressly excluded the BOE from their summary

judgment motion against the BOC and did not amend their motion or file anew

when the pending issues related to the BOE were resolved by the court. Although

a district court has the authority under Rule 56(f) to grant summary judgment (1) in

favor of a nonmoving party; (2) on grounds not raised by a party in its summary

judgment motion, or (3) sua sponte after “identifying for the parties material facts

that may not be genuinely in dispute,” the district court must first provide the

parties with “notice and a reasonable time to respond.” See Fed. R. Civ. P. 56(f);


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Massey v. Cong. Life Ins. Co., 116 F.3d 1414, 1417 (11th Cir. 1997). The notice

requirement “is not an unimportant technicality, but a vital procedural safeguard”

subject to strict enforcement. See Massey, 116 F.3d at 1417.

      Here, the district court committed reversible error when it did not provide

sufficient notice to the BOE prior to its sua sponte entry of summary judgment

against the BOE. The BOE received no notice that summary judgment might be

entered against it and thus had no opportunity “to formulate and prepare [its] best

opposition to an impending assault upon the continued viability of [its] . . .

defense.” See id.

      Although Appellees aver that the district court properly considered the

BOE’s “admission of liability” in granting summary judgment against the BOE,

this argument fails. First, the BOE only admitted § 2 liability for the limited

purpose of settlement in an attempt to gain the district court’s approval of the

redistricting plan negotiated between Appellees and the BOE. Second, the BOE’s

one-line “admission” does not overcome the “strictly enforced” notice requirement

of Rule 56. See id. Thus, reversal is warranted for the BOE to “marshal [its]

strongest evidence and legal arguments in opposition to summary judgment.” See

id. at 1417–18.




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B. Entry of Summary Judgment against the BOC

       Next, we consider the district court’s entry of summary judgment against the

BOC. 7 The BOC conceded that two of the Gingles preconditions were met; that is,

minority cohesion and majority bloc voting. However, the BOC disputed before

the district court and both Appellants dispute on appeal whether Appellees (1)

established the first Gingles precondition (that is, numerousness and geographical

compactness), and (2) whether the totality of the circumstances weighed in

Appellees’ favor.

       We approach this case with caution, bearing in mind that these

circumstances involve “one of the most fundamental rights of our citizens: the

right to vote.” Bartlett, 556 U.S. at 10, 129 S. Ct. at 1240. As noted above, it is

unusual to find summary judgment awarded to the plaintiffs in a vote dilution case;

however, there have been cases before this Court and the Supreme Court where

summary judgment was granted to the defendants. 8 Here, the BOC had full notice


       7
         Arguments regarding whether the district court properly entered summary judgment
against the BOC are found in both the BOC’s and the BOE’s briefs on appeal (and accordingly,
in each of Appellees’ response briefs). Thus, although the BOC was the only defendant-
appellant arguing against summary judgment before the district court, here, we refer to the
arguments of the Appellants collectively.
       8
        The affirmance of these grants on alternate grounds frequently resulted in dissents by
members of this Court, who urged that the parties should have a full opportunity to be heard and
premature resolution of the merits should be avoided, particularly given the nature of the
fundamental right at issue. See Nipper v. Smith, 39 F.3d 1494, 1556–57 (11th Cir. 1994) (en
banc) (Hatchett, J., dissenting) (noting that the policy of this Court where the trial court fails to
make sufficient findings on a material issue is to vacate the judgment and remand the action for
appropriate findings to be made); see also Johnson, 405 F.3d at 1242 (Wilson, J., concurring in
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and opportunity to make its arguments against summary judgment given that the

district court had before it cross-motions on summary judgment from Appellees

and the BOC. We find, however, that disposition of Appellees’ § 2 claim by

summary judgment was inappropriate because such a judgment required the

district court to weigh the evidence and make credibility determinations.

       When a district court renders summary judgment, “the only required finding

is that there is no genuine issue as to any material fact. If any fact issues exist a

trial judge must not make findings but is required to deny the motion and proceed

to trial.” Shook v. United States, 713 F.2d 662, 665 (11th Cir. 1983) (citation

omitted). In practice, “[c]ross motions for summary judgment may be probative of

the nonexistence of a factual dispute,” see id., but this procedural posture “do[es]

not automatically empower the court to dispense with the determination whether

questions of material fact exist,” see Lac Courte Oreilles Band of Lake Superior

Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir. 1983). If “both parties

proceed on the same legal theory and rely on the same material facts . . . the case is

ripe for summary judgment.” Shook, 713 F.2d at 665.

       However, here, the parties responded to each respective summary judgment

motion with disputes as to the “undisputed” facts, added “material facts” of their




part and dissenting in part) (dissenting on the basis that the “district court’s resolution of the
merits was premature and that the plaintiffs were entitled to present their case at trial”).
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own, and then replied with subsequent objections to the other party’s additional

facts. The parties also disputed which facts were legally relevant to the success or

failure of Appellees’ claim. Consequently, the record indicates that “the parties

disagree[d] as to the facts and t[ook] inconsistent legal theories,” and thus “the

mere filing of cross motions for summary judgment d[id] not warrant the entry of

[summary] judgment.” See id.

      There are also limited circumstances wherein the district court may treat

cross-motions for summary judgment as a trial and resolve the case on the merits.

See Voigt, 700 F.2d at 349. However, none of those circumstances were present in

this case. The district court did not hold a hearing on the motions for summary

judgment in which the facts were fully developed. See Tripp v. May, 189 F.2d

198, 200 (7th Cir. 1951) (“In a nonjury case if both parties move for summary

judgment and the court finds that there are issues of fact but that the facts have

been fully developed at the hearing on the motions, the court may proceed to

decide the factual issues and give judgment on the merits. This of course amounts

to a trial of the case and is not technically a disposition by a summary judgment.”

(internal quotation marks omitted)). Nor had the parties expressly stipulated to an

agreed set of facts, and, as noted above, the record does not support that the parties

had “in effect submitted th[e] case to the court for trial on an agreed statement of

facts embodied in a limited written record,” which would have enabled the court to


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decide all issues and resolve factual disputes. See Starsky v. Williams, 512 F.2d

109, 111 (9th Cir. 1975) (emphasis added). Thus, with the parties apparently

engaged in a factual dispute and in the absence of countervailing circumstances, it

was improper for the district court to resolve the case on the merits at summary

judgment.

      Nevertheless, in support of their argument that summary judgment was

proper, Appellees argue that Appellees and the BOC engaged in many rounds of

briefing on these issues and additionally, the developed evidentiary record

rendered summary judgment appropriate. See Restigouche, Inc. v. Town of Jupiter,

59 F.3d 1208, 1213 (11th Cir. 1995) (finding on appeal that summary judgment

was appropriate because the appellate court’s “independent review of the proffered

supplemental materials disclose[d] no genuine issues which would prevent

summary judgment” and the appellant did not “assert on appeal that there exist[ed]

additional evidence, beyond the record and the proffered supplemental material,

which would create material issues of fact”). Appellees note that discovery was

completed, with expert depositions and affidavits on summary judgment motions

submitted, and point to one other vote dilution case, Montes v. City of Yakima, No.

12-CV-3108-TOR, 2014 WL 4199364 (E.D. Wa., Aug. 22, 2014), where a district

court granted summary judgment to the plaintiffs.




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      In Montes, the district court explicitly rejected the defendants’ argument that

the record was “not sufficiently developed to resolve the issue of liability on

summary judgment,” noting that the fact-specific nature of the requisite inquiries

under Gingles did not relieve the defendants “of their obligation to come forward

with specific facts showing that there [was] a genuine issue for trial.” Id. at *23

(citation and internal quotation marks omitted). Since the defendants in that case

could not “avoid summary judgment by vaguely asserting that they ha[d]

additional unspecified evidence to present at trial,” the district court made an

express finding that “the record [was] sufficiently developed and not materially

disputed” before granting plaintiffs’ summary judgment motion. Id.

      However, the district court here did not make a comparable finding nor did

the record clearly afford such a finding. Although the district court recited the

appropriate standards for summary judgment in its summary judgment order, the

district court did not plainly state that no genuine issues of material fact were

present, nor did the court explain why it rejected the BOC’s proffer of disputed

material facts in the BOC’s summary judgment response.

      We are also concerned that the district court impermissibly weighed the

evidence before it. Appellants argue that the district court rejected explanatory

evidence presented by Appellants as to why no African-American candidate had

been elected. Appellants also aver that, in weighing the Senate factors to


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determine the totality of the circumstances, the district court “ignored the unique

demographic history of Fayette County” and disregarded “the fact that there is no

evidence that past discrimination has any impact on the political participation of

African-Americans in Fayette County.” To the extent that Appellants use these

arguments to contest the district court’s legal conclusion, their argument is

misplaced. The district court correctly held that the Senate factors are not an

exhaustive list, and Appellees were not required to prove a majority of those

factors or even any particular number of them. See Gingles, 478 U.S. at 45, 106 S.

Ct. at 2763. However, to the extent Appellants argue that this balancing appears to

involve a weighing of the evidence—that is, accepting Appellees’ evidence of

“practices that enhance discrimination” as persuasive and rejecting Appellants’

evidence as unpersuasive—that argument has some merit due to the procedural

posture of this case. Thus, although the court’s conclusion may be sustainable, the

method of arriving there (weighing the evidence presented by both sides) was

inappropriate on summary judgment and further does not reflect any inferences

drawn in Appellants’ favor. 9 See Burton v. City of Belle Glade, 178 F.3d 1175,


       9
          Under the circumstances, we can understand the district court’s temptation to resolve
the case on summary judgment. As the district court recognized, two important Senate factors
applicable in this vote dilution case are (1) the “extent to which minority group members have
been elected to public office in the jurisdiction” and (2) the “extent to which voting in the
elections of the state or political subdivision is racially polarized.” See Gingles, 478 U.S. at 48
n.15, 106 S. Ct. 2765 n.15 (internal quotation marks omitted). Here, with no African-American
ever elected to the BOE or the BOC and racially polarized voting in elections for both boards,
both of these important, undisputed factors pointed commandingly in Appellees’ favor.
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1187 (11th Cir. 1999) (“Summary judgment may be inappropriate even where the

parties agree on the basic facts, but disagree about the inferences that should be

drawn from these facts. If reasonable minds might differ on the inferences arising

from undisputed facts, then the court should deny summary judgment.” (quoting

Clemons v. Dougherty Cnty., Ga., 684 F.2d 1365, 1369 (11th Cir. 1982))).

       Further, one of the problems we are presented with is not so much a “fact-

finding” problem as it is a credibility determination problem; the record below

wants for credibility findings. For instance, the case turns on whether Appellees

met the first Gingles precondition (that the African-American community in

Fayette County is sufficiently large and geographically compact) and showed that

the challenged electoral system resulted in a discriminatory effect under the totality

of the circumstances. The BOC’s expert said neither were met; Appellees’ expert

said they both were. Thus, the court clearly rejected the deposition testimony of

the BOC’s expert and accepted the deposition testimony of the Appellees’ expert.

       On appeal, Appellees present persuasive arguments as to why the BOC’s

evidence in the form of expert deposition testimony was rejected by the district

court, but we will not affirm based on conjecture about why the evidence was


Furthermore, elections were looming in the immediate future, and, based on these undisputed
Senate factors, the district court may well have been concerned that African-Americans in
Fayette County would be effectively disenfranchised. Nevertheless, some material issues of fact
remained disputed at the time that the district court ruled, meaning that, by definition, these
disputed facts could possibly bear on the resolution of the legal issues in the case. Therefore,
summary judgment was procedurally improper.
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weighed the way that it was. We are simply not the appropriate court to make

these determinations, particularly when reviewing a grant of summary judgment.

See FindWhat Investor Grp., 658 F.3d at 1307 (noting that the district court must

not make credibility determinations at summary judgment); see also McIntosh

Cnty. Branch of the NAACP, 605 F.2d at 759 (“[s]ifting through the conflicting

evidence and legal arguments” is a function of the district court).

      Summary judgment in these cases presents particular challenges due to the

fact-driven nature of the legal tests required by the Supreme Court and our

precedent. See Nipper, 39 F.3d at 1527; see also Johnson v. DeGrandy, 512 U.S.

997, 1011, 114 S. Ct. 2647, 2657 (1994) (noting that “the ultimate conclusions

about equality or inequality of opportunity were intended by Congress to be

judgments resting on comprehensive, not limited, canvassing of relevant facts”).

The courts are required to “consider all relevant evidence,” conduct a “searching

practical evaluation of the past and present reality” of the challenged electoral

system, and “gradually draw[] together a picture of the challenged electoral

scheme and the political process in which it operates by accumulating pieces of

circumstantial evidence.” Nipper, 39 F.3d at 1527 (internal quotation marks

omitted); see Mallory v. Eyrich, 707 F. Supp. 947, 954 (S.D. Ohio 1989) (finding

that, even with pertinent statistics undisputed, “[f]ull development of the record is




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necessary in order to determine the appropriate interpretation of the pertinent facts

and to resolve the disputed issues presented by the experts’ analyses”).

      As Appellants argue, a bench trial, with the benefit of live testimony and

cross examination, offers more than can be elucidated simply from discovery in the

form of deposition testimony. We do not mean to suggest that the district court

must again go through each of the Gingles preconditions and each of the Senate

factors and simply reach different conclusions on remand (unless, of course, the

evidence adduced at trial requires such a result). Rather, the district court should

consider the respective parties’ evidence as brought forth with the benefit of live

testimony and cross-examination, making all necessary credibility determinations

and findings of fact to enable meaningful review. Then, instead of requiring

speculation on review, the record will reflect both the district court’s

determinations (made after live testimony and cross-examination) and the

reasoning in support of those determinations. See Johnson, 296 F.3d at 1074

(affording deference to the district court’s findings “due to its special vantage point

and ability to conduct an intensely local appraisal of the design and impact of a

voting system”). Thus, if this case comes before this Court again, we will have the

benefit of reviewing the court’s full factual findings and credibility determinations

under a clearly erroneous standard. See id.




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       To be clear, we decline to address any issues related to the merits at this

point. We do note that Appellants attempt to draw our attention to irrelevant

arguments that have no bearing on the merits of Appellees’ claims or which are

clearly foreclosed by precedent, as recognized by the district court in addressing

certain of Appellants’ arguments. 10 However, we address procedural issues before

the merits, and thus, we find that remand is warranted on the basis of the

procedural issues herein identified alone. Given the fundamental nature of the

right at issue, the intensely local appraisal of the facts warranted, and the complex

questions of fact and law that must be settled by the court below, we remand this

case to the capable hands of the district court. We appreciate the self-described

“abundance of caution” that the district court exercised in carefully and

thoughtfully addressing the parties’ arguments, and we have no doubt that the court

will again employ such caution in making appropriate findings after a bench trial.

                                    IV. CONCLUSION

       For the reasons set forth above, we conclude that this case warrants a limited

remand so that the district court may conduct a trial. We note that the BOE did not

have an opportunity to present its arguments against summary judgment; however,

       10
          Consider, for example, the district court’s comprehensive order denying the
interlocutory appeal and stay of the case, which noted that the “deficiencies in the [BOC’s]
arguments are highlighted by the fact that they fail to point to a single § 2 case applying the
framework they proffer” and that the “four controlling questions of law” identified by the BOC
(and very similar to some of the arguments now raised on appeal) are instead “manufactured,
wholly inaccurate recitations of the [c]ourt’s ruling, and/or have no relation to the [c]ourt’s
order.”
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since we also find that summary judgment was improper against the BOC, we see

no reason why the BOE’s case cannot be heard with along with that of the BOC.

The period for discovery had ended, and no party appealed the court’s

determination that discovery had closed for all parties. Thus, on remand, the court

may proceed to trial if it so desires, particularly given our finding that the record

below merely wants for the evidentiary determinations that summary judgment

does not permit. Also, because we resolve this case on strictly procedural grounds,

we do not reach the parties’ arguments related to the court-drawn remedial plan. In

light of our decision and the reasons therefor, we decline to disturb the results of

the election that took place under the court-drawn remedial plan.11

REVERSED IN PART, VACATED IN PART, AND REMANDED FOR
FURTHER PROCEEDINGS.




       11
          See, e.g., Bradas v. Rapides Parish Police Jury, 508 F.2d 1109, 1113 (5th Cir. 1975)
(vacating and remanding the district court but finding that, “[t]o prevent needless expense and
confusion, the tenure in office of the present members . . . elected under the [previously
implemented plans] shall not be disturbed in the interim”).


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