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Merrill Cook argued in court Tuesday that Utah's standard to get an initiative on the ballot was a violation of free speech and a "cynical ploy" by the Legislature to keep his employee-verification measure off the ballot.

The former Republican congressman said SB165, which was signed by Gov. Gary Herbert in March 2011, placed an unreasonable burden on signature gatherers by forcing them to collect 10 percent of the total votes cast for president.

"The measure of public support is the ballot box," Cook said. "We're trying to get it to the ballot box.'

The measure, if it got to the ballot and were passed, would require employers to verify a potential employee's right to work in the United States using a government-run program known as E-Verify. Current Utah law requires employers to use E-Verify, but there are no penalties for non-compliance. The system was established to curb hiring of illegal immigrants.

Cook's group — Citizens Aligned to Secure Utah's Prosperity — said the old standard of tying the number of signatures to votes cast for governor was a more reasonable standard. Cook also argued the new law shortened the window by which petitioners could collect signatures — from three years to 316 days — and largely "eliminated the temperate months" for volunteers to work.

He said ordinary citizens would have a difficult time getting an initiative on the ballot and would instead have to rely on professional signature gathering groups to accomplish the feat.

Thom Roberts, assistant attorney general, said Cook's group didn't "have a First Amendment right to be on the ballot."

"Their right to talk about those issues and urge people to take action or petition county council or the state Legislature to adopt laws is unfettered... and unrestricted," Roberts said.

An E-Verify bill was proposed in the 2012 legislative session, but quickly sputtered out.

Roberts also said "constitutional rights are not a function of weather" and that Cook already admitted in court that the standards of the new law weren't impossible to achieve.

"He's not saying it can't be done," Roberts said. "He's saying he can't do it."

The initiative would require 36,000 signatures under the law to qualify. Cook said organizers currently have 31,000 signatures.

He said if 3rd District Judge Randall Skanchy was to rule in his group's favor by saying the presidential vote tally was unreasonable, the signatures in hand would be enough to get the initiative on the November ballot.

Skanchy said he hoped to have a decision by the end of the week.

Twitter: @davemontero

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