Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 1 of 86 PAGEID #: 15096

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1 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 1 of 86 PAGEID #: IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION THE NORTHEAST OHIO COALITION FOR THE HOMELESS, et al., vs. Plaintiffs JON HUSTED, in his official capacity as Secretary of State of Ohio, and STATE OF OHIO, Defendant Intervenor-Defendant. : : : : : : : : : : : : : : : : : Case No. 2:06-CV-896 Judge Algenon Marbley Magistrate Judge Terence P. Kemp SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al., vs. Plaintiffs JON HUSTED, et al., Defendants. : : : : : : : : : : : : Case No. 2:12-CV-562 Judge Algenon Marbley Magistrate Judge Terence P. Kemp JOINT REPLY MEMORANDUM OF PLAINTIFFS IN NEOCH AND SEIU LOCAL 1 IN SUPPORT OF MOTIONS FOR ATTORNEYS FEES AND REQUEST FOR ORAL ARGUMENT (Dkt. 393, Case No. 2:06-CV-896, Dkt. 120, Case No. 2:12-CV-562)

2 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 2 of 86 PAGEID #: TABLE OF CONTENTS TABLE OF AUTHORITIES... vi A. Under Section 1988, civil rights plaintiffs litigating complex constitutional cases are entitled to fee awards that are commensurate with the compensation private attorneys would receive in commercial cases of similar complexity...3 Defendants erroneously suggest these cases merited less time and only adequate counsel. But Section 1988 puts this important constitutional work on par with other forms of complex litigation, and provides for fee awards that are comparable to what a fee-paying client would pay, without regard to the significance of the financial stakes of the cases. See Missouri v. Jenkins by Agyei, 491 U.S. 274, (1989); Blum v. Stenson, 465 U.S. 886, 893 (1984); Northcross v. Board of Educ., 611 F.2d 624, 633 (6th Cir. 1979). B. The manner in which counsel litigated these two cases to extraordinary results at the trial and appellate level, including the hours spent and number of attorneys involved, were more than reasonable given the extraordinary constitutional issues raised and the relief sought, and the efficiency demanded by the time constraints imposed by the imminent November 2012 election....8 Defendants proposal to reduce both case lodestars by 50% ignores important principles. First, notwithstanding Defendants post hoc attempt to downplay the cases complexity, Plaintiffs litigated these highly important issues, involving novel and complicated procedural and substantive questions, under severe time constraints and public scrutiny. Second, good lawyers must often spend more time researching, creating evidentiary records, and crafting legal arguments, not, as Defendants suggest, only a minimally adequate number of hours. Third, overlapping Plaintiffs counsel in these two related cases resulted in significant time savings and efficiency. Fourth, Plaintiffs submissions meet the burden of showing hours were reasonably spent and unnecessary hours were eliminated, shifting the burden to Defendants to provide specific reasons why particular time entries were excessive, which they have not done. See Imwalle v. Reliance Medical Products, Inc., 515 F.3d 531, 553 (6th Cir. 2008); Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir. 1991); Dowling v. Litton Loan Servicing, No. 05-CV-098, 2008 WL , at *3-4 (S.D. Ohio Mar. 31, 2008), aff d, 320 Fed.Appx. 442 (2009). Finally, Plaintiffs had a high degree of success. See Hensley v. Eckhart, 461 U.S. 424, 435 (1983); Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 628 (6th Cir. 2013). C. None of the time records or categories of time singled out by Defendants were excessive or unreasonably spent in achieving the extraordinary relief awarded in these two cases Discovery and the compilation of the evidentiary record...15 Compiling a statewide record of poll-worker error was reasonable in light of Plaintiffs constitutional claims, especially the rejection of a lesser evidentiary i

3 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 3 of 86 PAGEID #: showing in Crawford v. Marion Cty. Elec. Bd., 553 U.S. 181 (2008). Plaintiffs collected the evidence efficiently, over a short time, and did not duplicate efforts. 2. Motions, briefs, and other court documents...19 Time spent on motions and briefing was reasonable given the issues significance and complexity. Time constraints necessitated multiple attorneys involvement, and Plaintiffs efficiently divided labor, filed joint briefs, and coordinated the cases. Defendants demand greater detail in time records than case law requires. See Imwalle, 515 F.3d at 553; Communities for Equity v. Michigan High School Athletic Ass n, No. 1:98-CV-479, 2008 WL , at *14 (W.D. Mich. 2008). 3. Legal research by attorneys...25 Defendants challenges are general and conclusory. The legal research was reasonable and counsel has already exercised billing judgment. See Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008); Democratic Party of Washington State v. Reed, 388 F.3d 1281, 1286 (9th Cir. 2004) 4. Legal research by law clerks...28 Plaintiffs exercised billing judgment by using lower-billing law clerks for reasonable research and wrote off time that was not efficiently spent. 5. SEIU Local 1 permanent injunction motion...29 Plaintiffs needed to present the law and evidence supporting imposition of permanent injunctive relief, including updated information from the 2012 election. Moreover, Defendants did not consent to Plaintiffs motion. 6. Telephonic and court hearings...30 a. Number of attorneys present...30 Local rules require the trial attorney for each party to attend hearings. Attorneys who worked on different aspects of the case and/or were going to be involved in post-hearing work also needed to be present. b. Counsel travel time...33 Travel time for out-of-town counsel is proper and within the Court s discretion. Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir. 1991); Wayne v. Village of Sebring, 36 F.3d 517, 532 (6th Cir. 1994). Counsel made cost efficient decisions about hearing attendance and used travel time for preparation and consultation. c. Preparation and hearing time...33 ii

4 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 4 of 86 PAGEID #: Counsel efficiently prepared for oral argument and assigned a single attorney to argue back-to-back appeals. 7. Oral and written communications among attorneys regarding litigation strategy, arguments, evidence, and management of the cases...36 Communications among counsel helped prevent duplicative work in two expedited and overlapping cases. Courts recognize the value of communication in such complex cases. See Hunter v. Hamilton County Bd. of Elec., No. 1L10-CV- 820, 2013 WL , at *22 (S.D. Ohio 2013); NEOCH v. Brunner, No. 2:06- CV-896, 2010 WL , at *5 (S.D. Ohio Nov. 30, 2010). Defendants do not point to specific inefficiencies but simply object to the aggregate amount of time. Overlapping counsel and the role of senior attorneys aided efficiency. 8. Allegations regarding clerical work performed by attorneys...40 Defendants generally mischaracterize reasonable work as clerical. Upon further review, Plaintiffs withdraw a small amount of time that may have been clerical. 9. Defendants unsupported request for a 50% across-the-board reduction of the lodestars...41 The lodestars are presumptively sufficient and Defendants have not met their burden to show they should be reduced. Perdue v. Kenny A., 559 U.S. 542, 552 (2010); Imwalle, 515 F.3d at 552. D. Plaintiffs properly seek fees for all categories of work reasonably pursued, as prevailing parties are entitled to do Plaintiffs do not seek fees for work on claims on which Plaintiffs did not prevail...42 Plaintiffs do not seek fees for time spent litigating unsuccessful claims, and no further reduction is warranted. See Hensley, 461 U.S. at ; Corder v. Gates, 947 F.2d 374, 378 (9th Cir. 1991). Plaintiffs could have sought fees on these related claims but did not. 2. Plaintiffs reasonably pursued all of the categories of work in support of their successful claims for relief for which fees are sought, and so are entitled to be compensated for that work Plaintiffs are entitled to fees for work reasonably expended in support of successful claims, even if the time was ultimately not necessary or helpful to Plaintiffs success. See Hensley, 461 U.S. at 431, 435; Wolfe v. Perry, 412 F.3d 707, 723 (6th Cir. 2005); Northcross, 611 F.2d at ; Dowling v. Litton Loan Servicing, 2008 WL , at iii

5 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 5 of 86 PAGEID #: *2-3. Defendants erroneously conflate the issue of work on unsuccessful claims with work litigating a successful claim that did not in the end contribute to that success. a. SEIU Local 1 motion for defendant class certification...46 Plaintiffs pursuit of defendant class certification was reasonable in order to ensure an injunction could be enforced against county boards of elections. The Court s holding in a related case that county boards were agents of the Secretary of State mooted the need for class certification and so Plaintiffs did not pursue it. b. NEOCH motion to modify...49 Defendants do not address the argument that filing the motion to modify was reasonable to prevent constitutional violations that would have rendered it vulnerable to post-election attack. The motion was stayed, not denied, when the same relief sought was granted in a related case. Plaintiffs reasonably filed the motion even though similar relief was sought in SEIU Local 1. c. NEOCH contempt motion...51 Plaintiffs reasonably moved for civil contempt to ensure dismissal of the state court attack on the Decree. The same relief was awarded on different grounds. 3. Intervention in SEIU Local Binta B. was wrongly decided but Plaintiffs identify hours that could be omitted if this Court deems Binta B. to require it. 4. Fees for litigating the fees motion should not be limited to three percent because of unusual circumstances of this case a. Complexity and importance of cases...53 The cases were unusually complex and the accomplishments significant. See West v. AK Steel Corp. Ret. Accumulation Pension Plan, 657 F.Supp.2d 914, 931 (S.D. Ohio 2009). b. Coordinated litigation of two cases...53 Merits hours in NEOCH were low because time was split between two cases. c. Time required to eliminate and categorize hours...54 The fees request required an unusual amount of time to eliminate hours spent on unsuccessful claims and categorize hours on particular stages of the case. iv

6 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 6 of 86 PAGEID #: d. Defendants vigorous opposition to fees motion...54 Defendants filed a 79-page opposition brief, requiring significant time to prepare this reply brief. See City of Riverside v. Rivera, 477 U.S. 561, 581 n.11 (1986); Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 860 (1st Cir. 1998); Gross v. Perrysburg Exempted Village Sch. Dist., 306 F.Supp.2d 726, 743 (N.D. Ohio 2004); NEOCH v. Sec y of Ohio, 695 F.3d 563, 676 (6th Cir. 2012); Communities for Equity, 2008 WL , at *19. e. Plaintiffs substantial writeoff of merits hours...56 Plaintiffs wrote off substantial time that would otherwise be included in merits hours. E. The rates sought are reasonable The complexity of the case, nature of the relief, and skill and experience of counsel support the rates sought Civil rights plaintiffs in complex constitutional cases are entitled to rates comparable to what affluent parties would pay their attorneys in similarly complex litigation; the financial resources of the plaintiffs, size of the law firms involved, and amount of money at stake are irrelevant. See Jenkins by Agyei, 491 U.S. at 285; Blum, 465 U.S. at ; Rosie D. v. Patrick, 593 F.Supp.2d 325, 330 (D. Mass. 2009). The relevant factors here favor high rates, including the complexity of the case, significance of results, time constraints, and quality of counsel. See Libertarian Party of Ohio v. Husted, No. 2:11-cv-722, 2013 WL , at *4 (S.D. Ohio Sep. 11, 2013). Plaintiffs reasonable rates are based on lawyers of comparable skill and experience competent to litigate highly complex cases. See Adcock-Ladd v. Secretary of Treasury, 227 F.3d 343, 350 (6th Cir. 2000); Blum, 465 U.S. at 896 n.11. Defendants citations to other elections and civil rights cases that lack similar complexity are inapposite, and some of those cases are wrongly decided. 2. Defendants reliance on the Ohio State Bar Association survey and criticisms of Plaintiffs evidence are unpersuasive...64 The survey understates rates; lacks a mechanism to report attorneys skill, experience, or reputation; warns that it should not be used to set rates; and fails to take contingency risk into account. In any event, Plaintiffs requested rates are within the relevant range. Plaintiffs evidence withstands Defendants attacks. F. Oral Argument Is Warranted...68 CONCLUSION...68 v

7 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 7 of 86 PAGEID #: TABLE OF AUTHORITIES FEDERAL CASES vi Page(s) Adcock-Ladd v. Secretary of Treasury, 227 F.3d 343 (6th Cir. 2000)...57, 65 Auto Alliance Int l v. United States Customers Service, No , 155 Fed.Appx. 226 (6th Cir. Nov. 23, 2005)...64 B & G Mining, Inc. v. Director, Office of Workers Compensation Programs, 522 F.3d 657 (6th Cir. 2008)...57, 62 Blum v. Holder, 930 F.Supp.2d 326 (D. Mass. 2013)...6 Blum v. Stenson, 465 U.S. 886 (1984)...5, 56, 57 Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598 (2001)...3,22, 25 Building Service Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392 (6th Cir. 1995)...15 Bush v. Gore, 531 U.S. 98 (2000)...9, 10 Career Agents Network, Inc. v. Careeragentsnetwork.biz, 722 F.Supp.2d 814 (E.D. Mich. 2010)...54 Chamber of Commerce of the United States v. Federal Election Commission, No , 1994 WL (D.D.C. 1994)...6 Citizens Ins. Co. of America v. KIC Chemicals, Inc., No. 1:04-CV-385, 2007 WL (W.D. Mich. Oct. 1, 2007)...33 City of Riverside v. Rivera, 477 U.S. 561 (1986)...3, 5, 55, 56, 57 Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997)...6 Communities for Equity v. Michigan High School Athletic Ass n, No. 1:98-CV-479, 2008 WL (W.D. Mich. 2008)... passim

8 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 8 of 86 PAGEID #: Corder v. Gates, 947 F.2d 374 (9th Cir. 1991)...42 Coulter v. State of Tennessee, 805 F.2d 146 (6th Cir. 2008)...55, 62 Crawford v. Marion Cty. Elec. Bd., 553 U.S. 181 (2008)...1, 9, 15, 16 Democratic Party of Washington State v. Reed, 388 F.3d 1281 (9th Cir. 2004)...27, 32, 35 Dowling v. Litton Loan Servicing, No. 05-CV-098, 2008 WL (S.D. Ohio, Mar. 31, 2008), aff d, 320 Fed.Appx. 442 (6th Cir. 2009)...13, 14, 43 Dowling v. Litton Loan Servicing LP, 320 Fed. Appx. 442 (6th Cir. 2009)...64 Ehlers-Renzi v. Connelly School of the Holy Child, Inc., 224 F.3d 283 (4th Cir. 2000)...6 United States ex rel. Ellison v. Visiting Physicians Ass n P.C., No. 1:04-cv-220, 2010 WL (S.D. Ohio Jul. 19, 2010)...60 Entertainment Software Association v. Blagojevich, 469 F.3d 641 (7th Cir. 2006)...7 Entertainment Software Association v. Hatch, 443 F. Supp. 2d 1065 (D. Minn. 2006)...7 Fox v. Vice, 131 S.Ct (2011)...22, 45 Gautreaux v. Chicago Hous. Auth., 491 F.3d 649 (7th Cir. Ill. 2007)...20, 37 Geier v. Richardson, 871 F.2d 1310 (6th Cir. 1989)...4 Geier v. Sundquist, 372 F.3d 784 (6th Cir. 2004)...14, 58 Gross v. Perrysburg Exempted Village Sch. Dist., 306 F.Supp.2d 726 (N.D. Ohio 2004)...55 Hadix v. Johnson, 65 F.3d 532 (6th Cir. 1985)...61, 62, 67 vii

9 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 9 of 86 PAGEID #: Hamlin v. Charter Tp. Of Flint, 165 F.3d 426 (6th Cir. 1999)...58 Harkless v. Brunner, No. 1:06-cv-02284, 2011 WL (N.D. Ohio May 31, 2011)...17, 63 Harkless v. Husted, No. 1:06-cv-02284, 2011 WL (N.D. Ohio Mar. 31, 2011)...63 Hensley v. Eckhart, 461 U.S. 424 (1983)... passim Hunter v. Hamilton County Bd. of Elections, No. 1L10-CV-820, 2013 WL (S.D. Ohio 2013)...37 Hunter v. Hamilton County Board of Elections, 635 F.3d 219 (6th Cir. 2011)...9, 10 Imwalle v. Reliance Medical Products, Inc., 515 F.3d 531 (6th Cir. 2008)... passim Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989)...52 Island Park, LLC v. CSX Transportation, 559 F.3d 96 (2d Cir. 2009)...6 Jenkins v. Missouri, 967 F.2d 1248 (8th Cir. 1992)...52 Jordan v. City of Cleveland, 464 F.3d 584 (6th Cir. 2006)...42 Knop v. Johnson, 712 F. Supp. 571 (W.D. Mich. 1989)...24, 36 Lamar Advertising Co. v. Township of Van Buren, 178 Fed.Appx. 498 (6th Cir. 2006)...64 Lavin v. Husted, No. 1:10-CV-1986, 2013 WL (N.D. Ohio Jun. 13, 2013)...62, 63 Lenihan v. City of New York, 640 F.Supp. 822 (S.D.N.Y.1986)...36 Libertarian Party of Ohio v. Brunner, No. 2:04-cv-08, 2007 WL (S. D. Ohio Nov. 20, 2007)...64 viii

10 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 10 of 86 PAGEID #: Libertarian Party of Ohio v. Husted, No. 2:11-cv-722, 2013 WL (S.D. Ohio Sep. 11, 2013)...7, 57, 58 Livestock Marketing Association v. United States Department of Agriculture, 335 F.3d 711 (8th Cir. 2003)...6 LLC v. Patrick, No NMG, 2013 WL (D. Mass Aug. 16, 2013)...6 Lonardo v. Travelers Indem. Co., 706 F.Supp.2d 766 (N.D. Ohio 2010)...60 Lopez Torres v. New York State Board of Elections, 462 F.3d 161 (2d Cir. 2006)...6 McCombs v. Meijer, Inc., 395 F.3d 346 (6th Cir.2005)...22 Missouri v. Jenkins by Agyei, 491 U.S. 274 (1989)...5, 7, 56, 57 Moore v. Brunner, Nos. 2:08-cv-224, 2:08-cv-555, 2010 WL (S.D. Ohio Jan. 25, 2010)...64 Moreno v. City of Sacramento, 534 F.3d 1106 (9th Cir. 2008)...4, 26 Muehler v. Land O'Lakes, Inc., 617 F.Supp (D. Minn. 1985)...20 National Collegiate Athletic Association v. Governor of New Jersey, 730 F.3d 208 (3d Cir. 2013)...6 NEOCH v. Brunner, No. 2:06-CV-896, 2010 WL (S.D. Ohio Nov. 30, 2010)...37 NEOCH v. Husted, 696 F.3d 580 (6th Cir. 2012)... passim NEOCH v. Sec y of Ohio, 695 F.3d 563 (6th Cir. 2012)...55 Northcross v. Board of Educ., 611 F.2d 624 (6th Cir. 1979)... passim Ohio Right to Life Soc., Inc. v. Ohio Elections Comm n, No. 2:08-cv-492, 2013 WL (S.D. Ohio Oct. 22, 2013)...63 ix

11 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 11 of 86 PAGEID #: Ohio Right To Life Soc., Inc. v. Ohio Elections Comm n, No. 2:08-cv-492, 2014 WL (S.D. Ohio Jan. 22, 2014)...63 Osterweil v. Bartlett, 738 F.3d 520 (2d Cir. 2012)...6 Paschal v. Flagstar Bank, 297 F.3d 431 (6th Cir.2002)...14, 58 Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546 (1986)...15 Perdue v. Kenny A., 559 U.S. 542 (2010)...41 Perotti v. Seiter, 935 F.2d 761 (6th Cir. 1991)... passim Perry v. Brown, 671 F.3d 1052 (9th Cir. 2010)...6 Planned Parenthood of S.E. Pa. v. Casey, 505 US 833 (1992)...11 Pressley v. Haeger, 977 F.2d 295 (7th Cir. 1992)...46, 67 Prison Legal News v. Schwarzenegger, 608 F.3d 446 (9th Cir. 2010)...60 Project Vote v. Blackwell, No. 1:06-CV-1628, 2009 WL (N.D. Ohio Mar. 31, 2009)...64 Ralls Corp. v. Committee on Foreign Investment in the United States, 926 F. Supp. 2d 71 (D.D.C. 2013)...6 Republican National Committee v. Federal Election Commission, 698 F. Supp. 2d 150 (D.D.C. 2010)...6 Righeimer v. Jones, No. CIV.S DFLPAN, 2000 WL (E.D. Cal. Sept. 14, 2000)...6 Robertson v. Bartels, 150 F.Supp.2d 691 (D.N.J. 2001)...7 Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848 (1st Cir. 1998)...55 x

12 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 12 of 86 PAGEID #: Rosie D. v. Patrick, 593 F.Supp.2d 325 (D. Mass. 2009)...57 Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608 (6th Cir. 2013)... passim Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004) (per curiam)...28 SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014)...6 Sony BMG Music Entertainment v. Tenenbaum, 719 F.3d 67 (1st Cir. 2013)...6 South Carolina v. United States, 898 F.Supp.2d 30 (D.D.C. 2012)...6 United Food and Commercial Workers, Local Union 1099 v. City of Sidney, 174 F. Supp. 2d 682 (S.D. Ohio 2001)...7 Venetian Casino Resort, L.L.C. v. Local Joint Executive Board of Las Vegas, 257 F.3d 937 (9th Cir. 2001)...6 Vieth v. Pennsylvania, 241 F. Supp. 2d 478 (M.D. Pa. 2003)...7 Wayne v. Village of Sebring, 36 F.3d 517 (6th Cir. 1994)...33 Wesberry v. Sanders, 376 U.S. 1 (1964)...4 West v. AK Steel Corp. Ret. Accumulation Pension Plan, 657 F.Supp.2d 914 (S.D. Ohio 2009)...53, 60 Wolfe v. Perry, 412 F.3d 707 (6th Cir. 2005)...44 Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169 (6th Cir.1990)...25 Wzorek v. City of Chicago, 739 F.Supp. 400 (N.D. Ill.,1990)...37 Yick Wo v. Hopkins, 118 U.S. 356 (1886)...4 xi

13 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 13 of 86 PAGEID #: STATE CASES Byers v. Edmondson, 826 So.2d 551 (La. Ct. App. 2002)...6 Lebron v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (Ill. 2010)...6 LeRoux v. Secretary of State, 640 N.W.2d 849 (Mich. 2002)...7 Life Care Centers of America, Inc. v. East Hampden Associates Ltd. Partnership, 903 P.2d 1180 (Sutton; Colo Ct. App. 1995)...7 State By and Through McGraw v. Imperial Marketing, 472 S.E.2d 792 (W. Va. 1996)...6 State v. Reavley, 79 P.3d 270 (Mont. 2003)...7 RULES Fed. Rule Civ. Proc Fed. Rule Civ. Proc. 56(a)...30 Fed. Rule Civ. Proc S.D. Ohio Rule 3.1(b)(1)-(4)...24 S.D. Ohio Rule 83.4(a)...31 CONSTITUTIONAL PROVISIONS U.S. Const. amend , 7 U.S. Const. amend U.S. Const. amend U.S. Const. amend LEGISLATIVE HISTORY H.R. Rep. No (1976)...3 S. Rep , 1975 U.S.C.C.A.N , 5 S. Rep. No (1976), 1976 U.S.C.C.A.N , 5 xii

14 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 14 of 86 PAGEID #: OTHER AUTHORITIES Heather Gerkin, What Election Law Has to Say to Constitutional Law, 44 Ind. L. Rev. 7, 9 (2010)...11 Tribe, Laurence, The Unbearable Wrongness of Bush v. Gore, 19 Const. Comment. 571 (Winter 2002)...10 Nelson Lund, The Unbearable Rightness of Bush v. Gore, 23 Cardozo L. Rev. 1219, 1249 (2002)...10 xiii

15 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 15 of 86 PAGEID #: JOINT REPLY MEMORANDUM OF PLAINTIFFS IN NEOCH AND SEIU LOCAL 1 IN SUPPORT OF MOTIONS FOR ATTORNEYS FEES AND REQUEST FOR ORAL ARGUMENT (Dkt. 393, Case No. 2:06-CV-896, Dkt. 120, Case No. 2:12-CV-562) Over a six-month period leading up to a national election, Plaintiffs counsel in SEIU Local 1 and NEOCH achieved enormous victories for Ohio voters: Plaintiffs obtained an order requiring dismissal of a state court case that sought to render a federal voting consent decree void, defeated a motion to vacate that consent decree in federal court, assembled for court review a voluminous evidentiary record documenting disqualification of ballots cast by eligible voters in the wrong precinct due to poll-worker error in counties all across Ohio, obtained a preliminary injunction ordering Ohio state officials to cease disqualification of ballots cast in the wrong precinct but correct location on equal protection and due process grounds, and then defended those victories on appeal in the Sixth Circuit. These efforts took place in the critical months leading up to a Presidential election, and represented one of the first, if not the first, successful constitutional challenges to state election practices since the Supreme Court tightened the evidentiary standards for establishing such constitutional violations in Crawford v. Marion Cty. Elec. Bd., 553 U.S. 181 (2008). Defendants brief suggests that Plaintiffs counsel could have achieved these momentous accomplishments in this brief time period by limiting discovery to an unspecified sampling of counties, minimizing important strategy discussions, devoting far less time to research and briefing, and failing to pursue alternative strategies. Defendants also apparently take the position that the quality of the lawyering in this case had little to nothing to do with Plaintiffs success, because any adequate attorney (in fact, a civil attorney who charges median rates in Ohio) could have done the same. 1

16 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 16 of 86 PAGEID #: Defendants are wrong. This case was litigated, as it needed to be, with strategic acumen forged through counsel s experience and knowledge, as well as dialogue and discussion among co-counsel; with diligence, thoroughness, and attention to facts and details; and with wellresearched and well-argued motions, briefs, and oral arguments. Plaintiffs counsel accomplished this despite the incredibly expedited schedule, the lack of clarity of the applicable law, and the demands imposed by the Supreme Court for the type of evidentiary record required to mount a constitutional challenge based on deprivation of the right to vote. Plaintiffs should be compensated for the qualifications and experience of their counsel that allowed them to litigate these constitutionally complex cases in this manner, without which it is far from certain that the votes of tens of thousands of Ohio citizens would have been saved from disqualification. And Plaintiffs should be compensated for the work reasonably undertaken to obtain this result, not penalized for working harder than Defendants have, post hoc, deemed necessary. Defendants also suggest that the overlap in counsel between the two cases meant that counsel [we]re double billing for the same work. Opp. (SEIU Dkt. 131/NEOCH Dkt. 407) at 52. To the contrary: Plaintiffs counsel many of whom were representing separate parties divided the work efficiently and avoided duplication. The litigation of two cases on parallel tracks, with overlapping attorneys, allowed Plaintiffs counsel to litigate the two cases efficiently and effectively by using evidentiary materials, research, and merits discussions in both cases. Had two separate sets of counsel litigated these cases independently, the hours required, which would now be rightly compensated by Defendants, would be far higher than the current total. And Plaintiffs have already exercised billing judgment to eliminate any unnecessary or duplicative hours. 2

17 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 17 of 86 PAGEID #: Finally, the rates sought are more than reasonable in light of the level of skill and experience that Plaintiffs counsel brought, and that were required in order to litigate these complex cases effectively to their extraordinary results. A. Under Section 1988, civil rights plaintiffs litigating complex constitutional cases are entitled to fee awards that are commensurate with the compensation private attorneys would receive in commercial cases of similar complexity. Defendants brief suggests that these were run-of-the-mill elections cases that merited far less research, evidence, strategizing, and drafting than the time Plaintiffs counsel devoted to them, and that the cases required only adequate lawyers, not highly experienced counsel qualified to litigate these complex constitutional issues. See, e.g., Opp. (SEIU Dkt. 131/NEOCH Dkt. 407) at 1-2, 60. Defendants approach, however, is contrary to congressional intent and Supreme Court authority, which recognizes the critical role of attorneys fees in vindicating important public rights and makes clear that civil rights plaintiffs in complicated civil rights cases such as these are entitled to litigate their cases in the same manner as, and with just-asqualified counsel as, plaintiffs in cases with high pecuniary stakes. The purpose of 1988 is to ensure effective access to the judicial process for persons with civil rights grievances. Hensley v. Eckhart, 461 U.S. 424, 429 (1983) (quoting H.R. Rep. No , p. 1 (1976)). This purpose is of the utmost importance to Congress: The purpose of the attorneys fees provision is to vindicate important public rights: Congress expressly recognized that a plaintiff who obtains relief in a civil rights lawsuit does so not for himself alone but also as a private attorney general, vindicating a policy that Congress considered of the highest importance. If the citizen does not have the resources, his day in court is denied him; the congressional policy which he seeks to assert and vindicate goes unvindicated; and the entire Nation, not just the individual citizen, suffers. City of Riverside v. Rivera, 477 U.S. 561, 575 (1986); see also Northcross v. Board of Educ., 611 F.2d 624, 638 (6th Cir. 1979), abrogated on other grounds, Buckhannon Bd. & Care Home, Inc. 3

18 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 18 of 86 PAGEID #: v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 609 (2001) ( The entire purpose of the statutes was to ensure that the representation of important national concerns would not depend upon the charitable instincts of a few generous attorneys. ); Geier v. Richardson, 871 F.2d 1310, 1313 (6th Cir. 1989) ( Section 1988 s overriding goal was to reimburse with reasonable attorney's fees those who as private attorneys general take it upon themselves to invoke and thereby invigorate the federal constitutional and statutory rights.... fee awards have proven an essential remedy if private citizens are to have meaningful opportunity to vindicate important congressional policies which these laws contain. ) (internal quotation marks and citations omitted; brackets in original); Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008) ( Congress emphasized the importance of attorneys fees in cases seeking injunctive relief, where there is no monetary light at the end of the litigation tunnel ) (citing S. Rep. No , at 3 (1976), 1976 U.S.C.C.A.N. 5908, 5910). That purpose is no less important in cases involving voting rights. The Supreme Court consistently has reaffirmed that the right to vote is fundamental and preservative of all rights. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886); see also Wesberry v. Sanders, 376 U.S. 1, 17 (1964) ( No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. ); S. Rep , 1975 U.S.C.C.A.N. 774, 807 (discussing appropriateness of Section 1988 fees provision in voting rights cases). This Court stated that these voting rights cases were the most important matters that come before me maybe save perhaps a death penalty case. SEIU Dkt. 89 at In enacting Section 1988, Congress intended to put critically important constitutional work on par with other forms of important complex litigation. Thus, Congress and the Supreme 4

19 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 19 of 86 PAGEID #: Court expressly rejected the notion that fee awards should be lower in civil rights cases than in cases where a significant amount of money is at issue. Rather, civil rights plaintiffs are entitled to a fee award that is comparable to what is traditional with attorneys compensated by a fee paying client. Missouri v. Jenkins by Agyei, 491 U.S. 274, 286 (1989) (quoting S. Rep. No , p.6 (1976), 1976 U.S.C.C.A.N. 5908, 5913). In fact, as the Supreme Court has noted, Congress specified that there should be no difference between fees awarded in financially high stakes litigation like antitrust cases and equally complex civil rights litigation: It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. Blum v. Stenson, 465 U.S. 886, 893 (1984) (quoting S. Rep. No , p. 6 (1976), 1976 U.S.C.C.A.N. 5908, 5913) (brackets in original); see also S. Rept. No , 1975 U.S.C.C.A.N. 774, 808 (similar); Northcross, 611 F.2d at 633 ( Congress mandates that the fact that the rights involved are nonpecuniary is not a matter for us to consider in making an award. ). And, in Jenkins by Agyei, the Supreme Court quoted with approval a dissenting opinion by then-justice Rehnquist, in which he noted that the reasonableness of [a] fee must be determined in light of both the traditional billing practices in the provision, and the fundamental principle that the award of a reasonable attorney s fee under 1988 means a fee that would have been deemed reasonable if billed to affluent plaintiffs by their own attorneys. 491 U.S. at 286 (quoting Rivera, 477 U.S. at 591 (Rehnquist, J., dissenting)) (emphasis added). Thus, that this case protected the voting rights of potentially disenfranchised Ohio voters, rather than the monetary interests of well-heeled clients of the top law firms, in no way means that Plaintiffs fee award should be held to a lower standard than any similarly complex federal court litigation. 5

20 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 20 of 86 PAGEID #: Complex constitutional litigation such as this case has never been considered a simple or less intellectually rigorous area of law. In fact, it is often the case that important constitutional cases such as this one are litigated by the most highly experienced private practitioners, in the lower courts no less than the Supreme Court. 1 1 See, e.g., Perry v. Brown, 671 F.3d 1052 (9th Cir. 2010) (Theodore Olson; constitutional challenge to prohibition on same sex marriage); Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997) (Olson; Fourteenth Amendment defense of state affirmative action prohibition); Lebron v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (Ill. 2010) (Olson; state and federal constitutional challenges to state medical malpractice law); National Collegiate Athletic Association v. Governor of New Jersey, 730 F.3d 208 (3d Cir. 2013) (Paul Clement; constitutional challenge to Professional and Amateur Sports Protection Act); Sony BMG Music Entertainment v. Tenenbaum, 719 F.3d 67 (1st Cir. 2013) (Clement; Fourteenth Amendment challenge to damages in music piracy case); KG Urban enterprises, LLC v. Patrick, No NMG, 2013 WL (D. Mass Aug. 16, 2013) (Clement; constitutional challenge to state gambling laws); Ralls Corp. v. Committee on Foreign Investment in the United States, 926 F. Supp. 2d 71 (D.D.C. 2013) (Clement; Fourteenth Amendment challenge to divestment order); South Carolina v. United States, 898 F.Supp.2d 30 (D.D.C. 2012) (Clement; pre-clearance suit under Voting Rights Act); Osterweil v. Bartlett, 738 F.3d 520 (2d Cir. 2012) (Clement; Second Amendment challenge to handgun law); Blum v. Holder, 930 F. Supp. 2d 326 (D. Mass. 2013) (Seth P. Waxman; First Amendment challenge to Animal Enterprise Terrorism Act); Republican National Committee v. Federal Election Commission, 698 F. Supp. 2d 150 (D.D.C. 2010) (Waxman; First Amendment challenge to FEC regulations); SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014) (Lisa Blatt; Fourteenth Amendment challenge to use of peremptory challenges); Island Park, LLC v. CSX Transportation, 559 F.3d 96 (2d Cir. 2009) (Carter Phillips; constitutional challenges to state agency order closing private rail crossing); Lopez Torres v. New York State Board of Elections, 462 F.3d 161 (2d Cir. 2006) (Phillips; First Amendment challenge to New York system for nominating and electing supreme court judges); State By and Through McGraw v. Imperial Marketing, 472 S.E.2d 792 (W. Va. 1996) (Phillips; First Amendment and Dormant Commerce Clause challenges to preliminary injunction against direct-mail seller); Chamber of Commerce of the United States v. Federal Election Commission, No , 1994 WL (D.D.C. 1994) (Phillips; First Amendment challenge to FEC regulations on political advocacy to organization members); Byers v. Edmondson, 826 So. 2d 551 (La. Ct. App. 2002) (Walter E. Dellinger; First Amendment defense to civil suit against movie producer for inciting shooting spree); Venetian Casino Resort, L.L.C. v. Local Joint Executive Board of Las Vegas, 257 F.3d 937 (9th Cir. 2001) (Dellinger; First Amendment issues regarding landowner s ability to exclude demonstrators from public sidewalk); Righeimer v. Jones, No. CIV.S DFLPAN, 2000 WL (E.D. Cal. Sept. 14, 2000) (Dellinger; constitutional challenge to election primary results); Livestock Marketing Association v. United States Department of Agriculture, 335 F.3d 711 (8th Cir. 2003) (John Roberts; First Amendment challenge to use of mandatory contributions from beef producers); Ehlers-Renzi v. Connelly School of the Holy Child, Inc., 224 F.3d 283 (4th Cir. 2000) (Roberts; 6

21 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 21 of 86 PAGEID #: As addressed in greater detail in the remainder of this reply brief, this Court should reject Defendants invitation to base the fee award in these cases on the average number of hours that an average attorney in the Southern District of Ohio would have spent, at average hourly rates, litigating them. The Civil Rights Act intends effective representation of civil rights plaintiffs, Hensley, 461 U.S. at 429, and fee awards should not be divorced from reality but rather must take into account factors including the pace of the litigation, the stakes, and the complexity of the evidentiary record, legal arguments, and strategy. Not just any average attorney could have litigated these cases with the same effectiveness, and the fee award should be based on what these cases actually demanded, not an abstract average attorney. Because Section seeks to vindicate citizens constitutional rights..., society has an interest in encouraging attorneys to take such cases, Libertarian Party of Ohio v. Husted, No. 2:11-cv-722, 2013 WL , at *5 (S.D. Ohio Sep. 11, 2013) (Marbley, J.), not discouraging attorneys who otherwise litigate major constitutional cases for affluent clients, Jenkins v. Agyei, 491 U.S. at 285, from bringing them. First Amendment challenge to state exemption from zoning requirements for religious schools); Entertainment Software Association v. Blagojevich, 469 F.3d 641 (7th Cir. 2006) (Paul M. Smith; First Amendment challenge to law restricting showing sexually explicit images to minors); Entertainment Software Association v. Hatch, 443 F. Supp. 2d 1065 (D. Minn. 2006) (Smith; First Amendment challenge to restrictions on video game sales to minors); Vieth v. Pennsylvania, 241 F.Supp.2d 478 (M.D. Pa. 2003) (Smith; constitutional challenge to state redistricting plan); LeRoux v. Secretary of State, 640 N.W.2d 849 (Mich. 2002) (Smith; constitutional challenge to state redistricting plan); Robertson v. Bartels, 150 F. Supp. 2d 691 (D.N.J. 2001) (Smith; constitutional challenge to state apportionment of legislative seats); State v. Reavley, 79 P.3d 270 (Mont. 2003) (Jeffrey S. Sutton; Sixth Amendment challenge to police interrogation of criminal defendant); United Food and Commercial Workers, Local Union 1099 v. City of Sidney, 174 F. Supp. 2d 682 (S.D. Ohio 2001) (Sutton; First Amendment challenge to city s removal of union personnel from polling places); Life Care Centers of America, Inc. v. East Hampden Associates Ltd. Partnership, 903 P.2d 1180 (Sutton; Colo Ct. App. 1995) (First Amendment challenge to damages award in civil trial). 7

22 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 22 of 86 PAGEID #: B. The manner in which counsel litigated these two cases to extraordinary results at the trial and appellate level, including the hours spent and number of attorneys involved, were more than reasonable given the extraordinary constitutional issues raised and the relief sought, and the efficiency demanded by the time constraints imposed by the imminent November 2012 election. Defendants request that Plaintiffs counsel s lodestar should be reduced by a remarkable 50 percent in both cases in light of examples of what Ohio calls excessive, redundant and unnecessary time spent litigating these cases should be rejected because all of the time included in Plaintiffs detailed time records was reasonably spent, and Ohio has not provided any evidence or persuasive argument to the contrary. Plaintiffs respond in detail below to Defendants characterization of various billing entries as excessive, explaining why all of the time claimed was reasonably necessary, viewed at the time the work was done, to achieve the extraordinary success that counsel achieved here by preventing the intended unconstitutional disenfranchisement of tens of thousands of Ohio voters in the then-upcoming 2012 general election. In this section, Plaintiffs respond generally to Defendants themes, which run through their more specific criticisms of Plaintiffs billing entries: that Plaintiffs counsel spent too much time litigating these issues, and that Plaintiffs counsel overstaffed these cases. First and foremost, absent from Defendants argument is any recognition of the circumstances and time constraints under which this case was litigated, and the incredible importance of the issues at stake. Plaintiffs were asking this Court to do no less than (1) maintain and enforce a consent decree requiring Ohio to count certain votes that Ohio law mandates rejecting, over the federalism-based objections of the Ohio Secretary of State and State of Ohio; and (2) issue a statewide injunction holding Ohio s provisional ballot law unconstitutional and directing the Ohio Secretary of State and all 88 County Boards of Election to count tens of thousands of ballots that would otherwise be mandatorily rejected in the then- 8

23 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 23 of 86 PAGEID #: imminent and upcoming general election, an election of undeniable national significance. Even under normal litigation timelines, the importance of the constitutional issues raised, the intervention in election administration sought by Plaintiffs, and the very real potential for appellate and/or Supreme Court review would justify expenditure of time and resources far beyond the typical lawsuit. Plaintiffs counsel took very seriously their burden of providing this Court with the evidence and law that justified the extraordinary result they asked this Court to provide to the voters of Ohio, and that burden is reflected in the time spent carefully litigating every step of these cases. Defendants ignore the legal context as well, by their post hoc characterization of the extraordinary SEIU Local 1 relief a statewide injunction requiring that every vote cast in the correct location but the wrong precinct be counted unless voter error was shown as simply raising duplicative issues previously addressed in the single county election challenge in Hunter v. Hamilton County Board of Elections, 635 F.3d 219 (6th Cir. 2011); Opp. (SEIU Dkt. 131/NEOCH Dkt. 407) at 32. No case since the United States Supreme Court s decision rejecting the equal protection challenge in Crawford v. Marion County Elections Board, 553 U.S. 181 (2008), had succeeded in raising a statewide constitutional challenge to a state law as violating the fundamental right to vote. No case since the Supreme Court s decision in Bush v. Gore, 531 U.S. 98 (2000), had likewise succeeded in proving that a State was violating equal protection guarantees statewide by applying different standards to groups of voters. No competent counsel would ever reasonably mount such a challenge, prior to a general election in which the Presidency of the United States was potentially at stake, without doing everything possible to support their claims and to provide the Court with the evidence necessary to support its decision. As explained in the prior section, supra at 3-4, the Civil Rights Act does not 9

24 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 24 of 86 PAGEID #: establish a two-tiered justice system, but rather entitles Plaintiffs to compensation for the amount of time spent and resources dedicated to pursuing their claims effectively to ensure success for their clients. The measure by which this Court determines the reasonableness of time spent by counsel litigating these cases cannot ignore, as Defendants suggest, what was at stake in these cases. Defendants characterization of these cases as requiring straightforward applications of law following Hunter (Opp. (SEIU Dkt. 131/NEOCH Dkt. 407) at 32) is also contrary to the position they took throughout this litigation. Defendants certainly did not concede that Hunter controlled or resolved the constitutional issues before this Court in either of these two cases. See, e.g., SEIU Local 1 v. Husted, Sixth Circuit Case No , Brief for Ohio (Dkt ) (filed Sept. 14, 2012) at (arguing that dicta in Hunter did not control constitutional analysis). With respect to the constitutional issues raised in both cases, Defendants disputed both the proper standard that should apply and the outcome. SEIU Dkt. 28 at 10-11; NEOCH Dkt. 306 at 6-8. Nor did the Sixth Circuit treat the constitutional questions as pre-decided by Hunter. See NEOCH v. Husted, 696 F.3d 580, (6th Cir. 2012). Moreover, the NEOCH case also raised particularly complex and difficult issues with respect to intersecting lines of authority regarding the validity of consent decrees and the standard that should apply under Rule 60 or other sources of judicial authority to Defendants request to vacate the decree. NEOCH, 696 F.3d at ; NEOCH Dkt. 288, 306, 310. And the Bush v. Gore equal protection issues raised by the Consent Decree itself were unprecedented and complex, arising out of a very unresolved and controversial area of law. NEOCH, 696 F.3d at 604; see also, e.g., Tribe, Laurence, The Unbearable Wrongness of Bush v. Gore, 19 Const. Comment. 571 (Winter 2002); Nelson Lund, The Unbearable Rightness of Bush v. Gore, 23 10

25 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 25 of 86 PAGEID #: Cardozo L. Rev. 1219, 1249 (2002). The interaction of these two cases, which were related but not entirely overlapping, raised the level of complexity even further. Defendants after-the-fact downplaying of the enormous complexity, difficulty, and importance of these cases is simply an attempt to reduce fees, and is wrong. Voting cases such as these are among the most complex type of federal litigation, in no small part because mainstream constitutional theory translates unevenly into the field of politics. Heather Gerkin, What Election Law Has to Say to Constitutional Law, 44 Ind. L. Rev. 7, 9 (2010); see also Supplemental Declaration of Daniel Mordarski ( Supp. Mordarski Decl. ) 8. The political and federalism implications of the cases, and near certainty of appellate review, added to the difficulty of litigating them, and indeed, heightened the responsibility of both counsel and the Court. As the Supreme Court has stated with respect to constitutional cases with obvious political implications, the Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Planned Parenthood of S.E. Pa. v. Casey, 505 US 833, (1992) (plurality opinion of Justice O Connor, Kennedy, and Souter). Second, Defendants argument reflects a fundamental fallacy: that good lawyers need to spend less time to achieve successful results. Courts have long recognized that good lawyers often spend more time carefully and thoroughly researching issues, analyzing and creating extensive evidentiary records, and crafting legal arguments, particularly in cases of extraordinary importance involving fundamental rights: [The Defendant] argues Plaintiffs counsel billed an excessive amount of hours and that most hours, if not all, should not be compensated The aggregate time for their cause 11

26 Case: 2:06-cv ALM-TPK Doc #: Filed: 03/11/14 Page: 26 of 86 PAGEID #: exceeds 9000 hours, despite the fact that they boast of being the Nation s most acclaimed and experienced litigators in civil rights suits of this nature, and in handling the legal issues involved. This argument seems to suggest that great attorneys do not have to work hard. In the Court's experience, the exact opposite is true. Most great attorneys realize that to achieve a goal, much hard work and toil is necessary, especially when entering unchartered legal territory. Communities for Equity v. Michigan High School Athletic Ass n, No. 1:98-CV-479, 2008 WL , at *14 (W.D. Mich. 2008) (internal citations omitted). Defendants repeated cites to the total hours worked, either in the aggregate, by particular attorneys, or on specific days, proves nothing other than that, in this intense litigation, Plaintiffs counsel worked hard to protect Ohio voters rights. Third, Defendants ignore that the overlapping Plaintiffs counsel in these two related cases resulted in considerable and meaningful time savings and efficiency in the development and presentation of argument and evidence to this Court. Given the compelling time constraints imposed by the then-upcoming election and the need to provide this Court and the Sixth Circuit with sufficient time to resolve these important issues, Plaintiffs counsel in both cases necessarily worked as a team. Defendants repeatedly criticize the number of counsel involved, but as discussed below in greater detail, the work performed was not duplicative, and would have been impossible without a division of labor. Plaintiffs counsel more than reasonably balanced the right of all parties to be fully represented throughout these parallel cases with the need to divide labor among attorneys given the extreme time constraints. Whenever possible, counsel for the Plaintiffs in each case filed one brief on behalf of the many clients, rather than insisting on separate briefs. The team gained in efficiency in the presentation of arguments and evidence as a result of clients in the two different cases hiring some of the same lawyers to litigate these overlapping, but hardly identical cases. Counsel in both cases were able to collect and compile the extensive evidence relevant to the overlapping constitutional issues raised by Ohio s 12