The Colorado Supreme Court on Tuesday heard oral arguments in the 2019 lawsuit filed against Senate Democrats by Senate Republicans, which challenged whether a computer reading a bill at length is an adequate substitute for a human doing the same.

The lawsuit arose out of a March 11, 2019 reading of House Bill 19-1172, a technical reorganization of Title 12 in Colorado statutes. The bill was 2,023 pages long, and prime sponsor Sen. John Cooke, R-Greeley, asked that it be read at length. It was a delaying tactic employed by frustrated Republicans nearly a dozen times in the 2019 session, and followed the 2018 election when Republicans lost the majority in the state Senate.

The reading clerk, Andrew Carpenter, read the bill for about two hours. When it became clear the reading would take days, not hours, the Democrats’ solution was to set up a bank of five computers, all loaded with software that allowed the bill to be broken up into sections, with each computer reading aloud a section.

The computers read the bill simultaneously at about 650 words per minute, far above anyone’s reading comprehension. Senate Republicans sued and won in Denver District Court, with a preliminary injunction granted by Judge David Goldberg on March 19.

Goldberg ordered that bills be read at “an understandable speed,” although he did not define the speed. 

“The Court does not perceive this issue to be a political question,” Goldberg wrote. “The Court does not concern itself with the legislation at hand, the majority or minority party, or the number of days remaining in the legislative session.”

“Using multiple computers to read simultaneously different portions of a bill, any bill, at 650 words per minute is not within legitimate limits,” he wrote. “The Court was unable to discern a single word from the tape played during the court proceeding. To ‘read’ the bill, which is a constitutional requisite, in such a manner renders it a nullity.”

Related: District court judge rules in favor of Senate GOP on bill reading

But it’s whether the matter is a political question that puts the appeal by Senate Democrats into the hands of the Colorado Supreme Court.

At issue: whether the District Court erred in finding that the dispute was “justiciable,” rather than a political question, and thus whether the District Court should have refused to exercise jurisdiction. In addition, the state’s High Court will consider whether the District Court correctly evaluated the requirements for the injunction to direct the manner of the reading of a bill, and whether the District Court erred by granting declaratory relief in not defining the parameters for how a bill would be read at length.

Attorney Mark Grueskin, representing Senate Democrats, said the bill was read at length. The question isn’t whether the bill was read, it’s how the bill was read, he told the Court. Should it have been read slower, or with a single voice? The “how” of that question is a non-justiciable, political question, he insisted.

Grueskin’s first question came from Justice Richard Gabriel, who challenged him on the “how” issue. “Is there no limit to that? I’m thinking of outrageous hypotheticals – could a bill be read in Latin? Sanskrit?…We have to define ‘read’ and what does that mean.” What’s the limit on manner? Gabriel asked.

If the Constitution is specific about the elements in the legislative process, Grueskin responded, there are a variety of ways in which it can be accomplished, citing a 1978 case in which the Court said to look at the purpose. Both sides, with John Zakhem representing Senate Republicans, cited that 1978 lawsuit, which was about how “ayes” and “noes” were recorded.

Grueskin added that the argument is that if the reading requirement is an attempt to delay, that purpose was achieved. The purpose of the constitutional provision also was achieved, he said. “The words have to be uttered aloud, and that is the standard.”

Justice Monica Marquez said she found the Democrats’ reliance on the 1978 case interesting, given that the Court in that case exercised its authority to interpret the provision, rather than deferring to the Legislature to make the call.

Quoting the 1978 case, “our task is to determine whether the method actually chosen is in conformity with the requirement,” said Justice Melissa Hart, which she said would make the current case justiciable, and hence subject to the Court’s jurisdiction.

The standard applied by the District Court in 2019 was whether an average citizen would understand what was said, whether the person was in the building or listening over the Internet, Grueskin told the Court. The other side used a different standard, that it should be understood by a “reasonable person,” leading to questions about what that means and who needs to be satisfied.

That could lead to more lawsuits over what’s understandable, Grueskin said, over what he called an ambiguous standard. “There is great danger to the process if this decision is upheld.”

“Common sense matters here,” Gabriel said. Reading at 650 words per minute can’t possibly be reading, he said, adding that this feels like “how do we not comply and get away with it,” he said. “From a common sense perspective, we have to write an opinion with a straight face.”

Zakhem argued that interpreting “read at length” does not usurp a legislative power. It’s not a political question; it’s not a question at all, he said. There are choices and discretion involved, and that’s the difference between a constitutional and political question.

“Under the political question doctrine, your first responsibility is to interpret the word ‘read,'” Zakhem said.

But Marquez said there is “no speed limit” imposed by the Constitutional phrase. “Assuming we agree with you that it’s justiciable, as an interpretive matter, how is the Court required to add words to the phrase ‘read at length?'” she asked.

“You don’t need to add words,” Zakhem replied. He asked that they interpret the plain meaning of the statute or Constitution, enacted three times by the people of Colorado. In each of those times the word “read” meant a human being standing in the well, out loud reading texts to the legislature. There was no machine doing it – those decisions were made decades before computers – “but it was not the framer’s intent that the process be perceived as if it were a gaggle of turkeys at feeding time,” Zakhem said.

Reading at length is a guarantee of rights, Zakhem added. It’s the right of legislators to invoke this reading as a resistance to the tyranny of the majority party. It protects the rights of the minority party legislators to fight against the overwhelming will of the majority party, a determination the Court has already reached before, he said.

What rule would we write? asked Chief Justice Brian Boatright.

Zakhem proposed “reading means a human being in the presence of the legislature, reading out loud the text of the bill in question in an intelligible, comprehensible manner. “

But what would prevent the majority party from getting 100 kids from East High to read the bill simultaneously? responded Boatright. “Does that qualify? I’m worried about the immeasurable ways this could be thwarted or manipulated.”

[It should be noted that lining people up to simultaneously read bills at length has been a common practice of the General Assembly for years, most notably in 2003 during what became known as the midnight gerrymander.]

Zakhem said the Court must issue an opinion that makes it clear that the reading is not subject to subterfuge or abuse. Just as a governor is entitled to limit the subject matter in a special session, this Court should limit the discretion of the legislators to strictly comply with the term “reading,” Zakhem said.

The ability to read a bill at length has another purpose: to slow down the legislative process, even preventing other bills from moving forward, not just the one being read at length, Zakhem explained. That won him a challenge from Hart to prove just where the law allows for it.

Zakhem referred to an 1894 case, stating that the framers understood that frequent sessions could result in excessive legislation and as a result limited the session to check over-legislation. “It’s a general right that belongs to legislators,” Zakhem said. It wasn’t Cooke’s intention to derail HB1172, he said. It was to stall the majority’s consideration of other bills that the minority party opposed. “Too many laws makes thieves of us all,” he added.

“You make it feel like this is a political question,” responded Hart. Boatright agreed, stating the reading at length was for a political purpose, and hence a political question for the legislature to figure out. 

Gabriel also asked why it has to be a human reading the bill. “We have books on tape,” he said.

“A person can’t read without exercising human consciousness, the perception of acoustics and intonation,” Zakhem replied. A computer follows a program, with no ability to make sure the intended audience understands what’s being done, and even subject to manipulation.

Would a person who reads really fast (and bill reading clerks can read at around 150 words a minute) satisfy the requirement? Yes, Zakhem said.

Senate Democrats declined to comment, deferring to a statement issued by Grueskin.

“The Supreme Court is being asked to decide if the Senate can continue to determine – as it has for years – how it’s own legislative procedures satisfy the state Constitution. The courts have never wanted to referee every partisan squabble over process. For that reason, they’ve correctly stayed out of these disagreements for the last century in Colorado.”

Senate Republican spokesman Sage Naumann said “We are cautiously optimistic and thankful for the Supreme Court’s consideration.”