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
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.
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.
Despite being the preferred candidates of African-American voters in countywide elections, no African-American candidates had ever been elected to the BOC or the BOE, regardless of the candidates' respective qualifications or party affiliation.
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 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.
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).
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 atlarge 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.
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 condition of servitude.'" Voinovich v. Quilter, 507 U.S. 146, 152, 113 S.Ct. 1149, 1154-55, 122 L.Ed.2d 500 (1993) (alteration
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.
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, 173 L.Ed.2d 173 (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, 138 L.Ed.2d 285 (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. at 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 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.
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).
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 nonmoving party. See Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 1774, 167 L.Ed.2d 686 (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, 91 L.Ed.2d 202 (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.
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
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.
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); 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.
Next, we consider the district court's entry of summary judgment against the BOC.
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.
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 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
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, ___ F.Supp.3d ___, 2014 WL 4199364 (E.D.Wa., Aug. 22, 2014), where a district court granted summary judgment to the plaintiffs.
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.
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
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 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, 129 L.Ed.2d 775 (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 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.
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.
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, since we also find that summary judgment was improper against the BOC, we see no reason why the BOE's case cannot be heard 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.
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.