Matthews Bark – Google Defends U.K. Tax Accord as Legal, Not ‘Sweetheart Deal

Source     : Bloomberg
By            : Thomas Penny
Category : Attorney Matthews BarkMatthews Bark

Google Defends U.K. Tax Accord as Legal, Not ‘Sweetheart Deal
Google Defends U.K. Tax Accord as Legal, Not ‘Sweetheart Deal

Google Inc. denied it reached a “sweetheart deal” with British tax authorities as a dispute continued over the 130 million-pound ($185 million) settlement, which was called a victory by the U.K. Treasury and dismissed as “derisory” by opposition lawmakers. U.K. Business Secretary Sajid Javid separately said the agreement “wasn’t a glorious moment” and he shares “the sense of unfairness” felt by small businesses that are unable to use the tools available to multinational corporations to keep their taxes low. “Work needs to be done” to ensure they pay the correct share, he said. “It’s not a sweetheart deal, it’s a settlement with HMRC,” Peter Barron, Google’s U.K. head of communications, told BBC TV’s Andrew Marr Show on Sunday, referring to Her Majesty’s Revenue and Customs. “Government puts the laws in place, HMRC enforces the laws and we follow the laws. If the laws change, of course we would follow them.”

Past Taxes

Google parent Alphabet Inc. agreed to pay tax going back 2005 after talks with U.K. tax authorities, while across Europe the company was criticized for using innovative tools to keep its tax rates low. HMRC has been faulted for not securing more money after reports that France and Italy are demanding higher settlements from the Mountain View, California-based company. The U.K. agreement was announced Jan. 23. Separately, the Sunday Times reported that six of the 10 biggest companies in the benchmark London Stock Exchange index, including Royal Dutch Shell Plc, SABMiller Plc and AstraZeneca Plc, paid no U.K. corporation tax for 2014. The companies told the newspaper that losses, minimal revenue in the U.K. revenue and expiring drug patents meant the company didn’t have to pay the taxes.

Javid defended the context of the U.K. deal, which Chancellor of the Exchequer George Osborne described as “a victory” for the government. It has been criticized by lawmakers, including Conservative Mayor of London Boris Johnson and the opposition Labour Party, which said the company’s effective tax rate was as low as 3 percent.

“It wasn’t a glorious moment when people look at these issues, but it is important to talk about what the government is doing,” Javid said on Marr’s program. “The government has taken a huge amount of action to try and deal with just this kind of problem.” The U.K. has closed more than 40 tax loopholes, signed information exchange deals with other countries and pressed for changes in international rules, Javid said, and that work needs to continue. The Google deal will help in the drive to change companies’ attitude to taxation, he said. “The way in which it was a success is that it helps change behavior,” he said. “It’s clear to me that when other companies look at this and they see that HMRC, no matter how long it takes, will not give up, they will come after you if they feel you’re not paying your fair share in taxes.”

Read more : bloomberg.com/news/articles/2016-01-31/google-defends-u-k-tax-accord-as-legal-not-sweetheart-deal-

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Matthews Bark – Don’t let a penetration test land you in legal hot water

Source     : Tech Republic
By            : Taylor Gillan
Category : Attorney Matthews BarkMatthews Bark

Don't let a penetration test land you in legal hot water
Don’t let a penetration test land you in legal hot water

Penetration (pen) testing is a valuable way to determine how resistant an organization’s digital infrastructure is to outsider attack. What better way to check a network’s security than giving scary-smart individuals permission to hack it. The authors of this SANS Institute paper about pen testing — Stephen Northcutt, Jerry Shenk, Dave Shackleford, Tim Rosenberg, Raul Siles, and Steve Mancini — make an interesting point, saying, “The main thing that separates a penetration tester from an attacker is permission. The penetration tester will have permission from the owner of the computing resources that are being tested.”

What exactly does permission mean?
Employing an outside party to attack an organization’s network while the organization continues normal operation is the only realistic way to test. However, it introduces certain challenges. Enough that Michael R. Overly, a Partner and Intellectual Property Lawyer with Foley and Lardner LLP, urges caution when negotiating the contract for a security audit involving pen testing. If you are wondering what a lawyer knows about pen testing, Overly is not your normal attorney. He has a slew of security certifications including CISA, CIPP, CISSP, ISSMP, and CRISC, has written about information security, and is recognized by peers for his information-security mettle.

Considerations for organizations requesting a pen test

Here are the precautions and considerations Overly suggests in this National Law Review post for companies seeking a security audit. The organization requesting a security audit should consider having the auditor represented by legal counsel: Doing so will afford the organization an opportunity to protect the audit and its results with attorney-client privilege and under the attorney work product doctrine. Overly also suggests, “Ask to review the report in draft form to make any changes before it is placed in the final form.” Treat the audit agreement as a professional services engagement: Ensure the work is clearly detailed in a well-drafted statement of work and that all costs are identified. Overly warns, “Beware of ‘scope creep’: new services that are added as the project progresses. Allowing creep may add significant costs and may not be protected by stipulations in the contract.” Think carefully before permitting unannounced penetration tests: At least some coordination should be given to ensure the operation of critical systems is not disrupted during key operating hours or month-end processing. Do not permit the audit agreement to create more risk than it is intended to resolve: This means ensuring the auditor assumes an appropriate level of responsibility. Overly offers the following reasons why this is important:

– Audit agreements normally do not include sufficient language regarding obligations of the pen tester concerning information security and confidentiality.
– The auditor will have access to sensitive data and details of how the organization secures its systems. That means strong security and confidentiality obligations, plus a level of liability that ensures the pen tester will comply with those obligations.

Overly further cautions, “Beware of auditors who are unwilling to provide reasonable protection for sensitive information.” Review language in the agreement permitting the auditor to remove data for off-site review: If such activity is permitted, the agreement should make clear the following:

-The data cannot be made available outside the country (unless specific controls are employed).
-The auditor cannot remove personally-identifiable data that may be subject to specific laws or regulations without first committing to be bound by those laws and regulations.
-The auditor cannot take possession of credit-card information unless there is an express need for possession, and the auditing company and or pen tester are fully compliant with the Payment Card Industry Data Security Standard.

Overly advises, “It is far better, however, to prohibit the pen tester from removing such data in the first place, given its sensitivity.”

Considerations for security auditors

Mark Rasch, in his SecurityCurrent column Legal Issues in Penetration Testing, looks at the implications a security auditor faces when performing a penetration test. First up, is recognizing that computer crime laws such as 18 USC 1030 come into play. Rasch writes, “18 USC 1030 makes it a crime to access or attempt to access a computer or computer network without authorization or in excess of authorization. What constitutes ‘authorization’ and who can authorize such access can quickly get muddy.” “So the lesson learned here is that penetration testing, even when authorized, can result in a host of legal trouble,” continues Rash. “The pen tester should obtain a ‘get out of jail free’ card from the customer, specifically indicating not only that the pen testing is authorized, but also indicating that the customer has the legal authority to authorize the pen test.” Rash offers the following suggestions of what else should be in the contract:

-Indicate what the auditor will do (and will not do) and the range of IP addresses, subnets, computers, networks, or devices that will be the subject of the pen test.
-If a software review is being asked for, ensure the copyright to the software permits reverse engineering or code review.
-If a pen tester is to test a network in the cloud, permission must be obtained from the cloud provider.

Sensitive data
Rash spent considerable energy speaking to the likelihood of auditors bumping into sensitive data. “A successful pen test can result in the pen tester getting into a computer or computer network that they should not have had the ability to access,” he writes. “Also, it may include accessing data or databases that contain sensitive personal information, credit-card information, personally identifiable information (PII) or Private Health Information (PHI).”
Next, Rash introduces the following must ask questions when sensitive data is involved:

– Is the access to the information by the pen tester a “breach” of the database which must be reported?
– Must the pen tester sign a “Business Associate Agreement” agreeing to protect the data they just accessed?

During an email conversation, Overly brought up a not often thought about consequence regarding sensitive data. “The party conducting the test will gain highly sensitive information regarding the other party’s security measures,” he writes. “If that information were to be revealed to third parties, it could permit a hacker to compromise the tested systems.” Like most things, the actual work almost seems easier than all the paperwork and planning that must happen before a penetration test even begins. However, a well-worn cliche seems to apply here: “Better to be safe than sorry.”

Read More :  techrepublic.com/article/dont-let-a-penetration-test-land-you-in-legal-hot-water/

Attorney Matthews Bark – Affordability plan for Detroit water doesn’t violate state law

Source     : Metro Times
By            : Michael Jackman
Category : Attorney Matthews BarkMatthews Bark

Affordability plan for Detroit water doesn’t violate state law
Affordability plan for Detroit water doesn’t violate state law

Close readers of News Hits are aware there’s a water tug-of-war going on. At its center is how to best address the problem of ratepayers who can’t afford to pay their bills. On one side is a majority of Detroit’s officials, who insist upon a get-tough policy of shutting off service, coupled with charitable contributions to help customers pay their bills. On the other side is a group of activists, politicians, and consultants who declare that an affordability plan would produce better outcomes for Detroiters, suburban ratepayers, and even the utility itself. It’s a subject that has cropped up in Detroit before. In 2006, Detroit City Council approved an affordability plan for the Department of Water & Sewerage. But the plan was never implemented, and several city officials now proclaim that any such plan would be illegal under state law. Earlier this year, Curt Guyette reported that DWSD Deputy Director Darryl Latimer had told him that state law “prohibits any kind of assistance plan that charges some customers less than the actual cost of service.” The same article mentioned that “DWSD attorney William Wolfson told the board he’s in possession of two legal opinions stating that an affordability plan isn’t allowed under current state law.”
That apparent sticking point came up again in an article in yesterday’s Detroit News, in which DWSD consultant Eric Rothstein said that water affordability plans ”aren’t currently legal in Michigan,” calling them “unconstitutional.”
The fine point of law seems to have gotten a reaction out of local blogger Nick Krieger. Krieger’s day job is as attorney with the Michigan Court of Appeals, but he also pens his own personal legal blog, Fix the Mitten. Yesterday, Krieger blogged about the claims that income-based affordability plans are illegal and unconstitutional and concluded that both statements are “misleading and probably incorrect.”

He writes:

Michigan law provides that a municipal water supplier authorized to sell water beyond its territorial boundaries must charge customers who live outside the city “a rate which is based on the actual cost of service as determined under the utility basis of ratemaking.” … However, there is no comparable statue requiring a municipal water supplier to charge city residents a rate that is based on the actual cost of service. True, the Michigan Supreme Court has held in some cases that municipal utility rates which exceed the actual cost of service constitute a tax and violate a specific provision of the Headlee Amendment of the Michigan Constitution of 1963. But the Michigan Supreme Court has never struck down a municipal utility rate on the ground that it is less than the actual cost of service. Bear in mind that under an income-based payment plan established by the city of Detroit, the rate for out-of-city customers and non-indigent in-city customers would remain the same and would not increase. For example, out-of-city customers would still be charged a rate based on the actual cost of service. The only difference is that qualifying, indigent, in-city customers would be charged a lower rate based on their ability to pay. There is nothing unconstitutional or inherently illegal about such a system. Article 7, section 24 of the Michigan Constitution of 1963 states, “Subject to this constitution, any city or village may acquire, own or operate, within or without its corporate limits, public service facilities for supplying water, light, heat, power, sewage disposal and transportation to the municipality and the inhabitants thereof.” Furthermore, Article 7, section 34 provides that “[t]he provisions of this constitution and law concerning . . . cities and villages shall be liberally construed in their favor.” In the end, neither the Michigan Constitution nor Michigan statutory law appears to place any restriction on a city’s authority to set lower rates for resident water customers based on their ability to pay.

It’s a bit dry and drawn, but it’s about as strong an argument as we’ve heard that there is no prohibition on the progressive plan. When we spoke with economist and lawyer Roger Colton, he told us that such claims about affordability-based plans being illegal were an “excuse,” and added, “Rather than bemoaning the state law, they should start building the argument on why this fits within their traditional regulatory authority, and I think it does.” The question of the moment: Will Detroit could take a lesson from several other U.S. cities and their affordability plans, such as Chicago, St. Louis, Cleveland, and even Philadelphia, which recently approved an affordability plan for its ratepayers? Or will it continue to resort to a system that is ineffective, punitive, and expensive, based on unexamined claims that doing otherwise may be illegal?

Read more at : metrotimes.com/Blogs/archives/2015/09/03/legal-blogger-affordability-plan-for-detroit-water-doesnt-violate-state-law

Attorney Matthews Bark – Legal challenge to N.C. voter ID could be settled

Source     : Journal Now
By            : Michael Hewlett Winston-Salem Journal
Category : Attorney Matthews BarkMatthews Bark

Legal challenge to N.C. voter ID could be settled
Legal challenge to N.C. voter ID could be settled

North Carolina’s voter ID law may not go to trial after all, according to court documents filed Monday. The recent federal trial on North Carolina’s Voter Information Verification Act that ended about two weeks ago did not deal with the state’s photo ID requirement that goes into effect in 2016. It only dealt with other provisions of the law, which reduced the early voting period, eliminated same-day voter registration, prohibited county election officials from counting ballots cast in the wrong precinct but correct county, and abolished preregistration for 16- and 17-year-olds. U.S. District Judge Thomas Schroeder decided that the legal challenge to the photo ID requirement would be dealt with later. Schroeder’s decision came after state Republican legislators approved an amendment easing the photo ID requirement.

The amendment allows voters without photo ID to sign a declaration saying they had a “reasonable impediment” to getting a photo ID and also enables voters to use a photo ID that has expired as long as it has not been more than four years. State Republican leaders proposed the changes less than a month before the federal trial was to start. The N.C. NAACP, the U.S. Department of Justice and others charged that North Carolina’s law disproportionately damaged the ability of blacks, Hispanics, poor people and young people to register and vote. The federal trial that ended July 31 was closely watched because North Carolina passed one of the country’s most sweeping election changes soon after the U.S. Supreme Court invalidated Section 5 of the Voting Rights Act in June 2013. Section 5 of the Voting Rights Act required certain states and local communities, including in North Carolina, to seek federal approval for election changes in a process known as preclearance. In court papers filed Monday, attorneys representing the state NAACP and other plaintiffs said that their pending claims “may be able to be resolved through discussion and negotiations with Defendants.” The plaintiffs still believe the photo ID requirement is racially discriminatory and that state Republican leaders had discriminatory intent in passing the legislation, according to court documents.

They also said they have concerns about whether the state election officials have adequately educated the public about the new changes and whether county election officials have gotten the proper training. They also said state officials have not explained how exactly the new changes are going to be interpreted. The Rev. William Barber, president of the state NAACP, said Tuesday that attorneys are still examining the implications of the amended photo ID requirement and the legal options. Nothing has been settled, and plaintiffs said the changes may be even more confusing to people, he said. Barber said the amendment represents a 21st century literacy test because blacks are disproportionately more likely to be illiterate. Some might not be able to fully understand the “reasonable impediment declaration” they would have to sign if they don’t have a photo ID, Barber said. Literacy tests were used during the Jim Crow era to keep blacks from voting. Plaintiffs said in court papers that they plan to present a possible consent decree this week to defendants and raise areas of concerns “with the purpose of settlement discussions.”

“Plaintiffs believe that through a consent decree, Defendants may be able to provide the reassurances needed to resolve the pending claims without further court proceedings and reserve any remaining concerns in a different proceeding, if necessary,” they write in court documents. Attorneys for the plaintiffs said they would report back to Schroeder on Sept. 18. Thomas Farr, one of the lead attorneys for the state, did not return a message seeking comment. Attorneys representing the state and Gov. Pat McCrory filed court papers Monday, saying that the legal challenge to the photo ID law should be dismissed. They also argued that a decision by another federal appeals court striking down Texas’ voter ID law proposed something similar to the amendment that North Carolina passed. Plaintiffs said that’s a misreading of the ruling, which they argued left the ultimate decision on how to fix Texas’ Voter ID law to a lower federal court. Barber said Tuesday that Schroeder should not dismiss the legal challenge because even with the change, the law is still unconstitutional and racially discriminatory. “We’re still fighting and we’re winning,” he said. Schroeder has not issued a decision in the federal trial. He has said it would likely be weeks, and possibly months, before he issues a ruling.

Read More:  journalnow.com/news/elections/local/legal-challenge-to-n-c-voter-id-law-could-be/article_ff4da1a0-6c39-5ad9-a068-9645c320159b.html

Attorney Matthews Bark – Federal appeals court dismisses legal challenge to California’s shark fin ban; soup a delicacy

Source     : Fox News
By            : Associated Press
Category : Attorney Matthews BarkMatthews Bark

ederal appeals court dismisses legal challenge to California's shark fin ban; soup a delicacy
ederal appeals court dismisses legal challenge to California’s shark fin ban; soup a delicacy

A federal appeals court Monday dismissed a legal challenge to a California law banning the sale, distribution and possession of shark fins. The legislation does not conflict with a 19th century law that gives federal officials authority to manage shark fishing off the California coast or significantly interfere with interstate commerce, the 9th U.S. Circuit Court of Appeals said. The 2-1 ruling upheld a lower court decision tossing the lawsuit brought by the Chinatown Neighborhood Association and Asian Americans for Political Advancement, a political action committee.

The groups had argued that the ban — passed in 2011 — unfairly targeted the Chinese community, which considers shark fin soup a delicacy. Shark finning is the practice of removing the fins from a living shark, leaving the animal to die. Joseph Breall, an attorney for the groups, said they were reviewing their options and had not yet decided whether to appeal. He said he was heartened by the dissenting opinion by Judge Stephen Reinhardt, who said the plaintiffs should have been allowed to amend their lawsuit.

The plaintiffs had argued on appeal that the shark fin law conflicted with the federal law intended to manage shark fishing off the California coast. The majority in the 9th Circuit ruling, however, said the federal law has no requirement that a certain number of sharks be harvested, and even if it did, the California law still allowed sharks to be taken for purposes other than obtaining their fins.

The federal law, additionally, envisions a broad role for states in crafting fishery management plans, and, like California’s ban, makes conservation paramount, the court said. The 9th Circuit also rejected the plaintiffs’ claims that the ban illegally interfered with trade in shark fins between California and other states and the flow of shark fins between states through California. “The Shark Fin Law does not interfere with activity that is inherently national or that requires a uniform system of regulation,” Judge Andrew Hurwitz wrote. “The purpose of the Shark Fin Law is to conserve state resources, prevent animal cruelty, and protect wildlife and public health. These are legitimate matters of local concern.”

Read More :  foxnews.com/leisure/2015/07/27/federal-appeals-court-dismisses-legal-challenge-to-california-shark-fin-ban/

Matthews Bark – NSW Budget’s law-and-order splurge funds high-tech policing

Source    :  SMH
By            :  Nicole Hasham
Category :  Attorney Matthews BarkMatthews Bark

NSW Budget's law-and-order splurge funds high-tech policing
NSW Budget’s law-and-order splurge funds high-tech policing

Police would be armed with mobile fingerprint scanners and drug detectors in a Baird government cash splash on law and order, fulfilling its pledge to get tough on crime. As promised before the election, the “Policing for Tomorrow” fund allocates $100 million over four years to give police the latest technology. Police would bid for equipment such as tablet computers so frontline officers can access police data in the field, or hand-held machines that scan for narcotics. The fingerprint scanner would enable instant identification of offenders. Police minister and Deputy Premier Troy Grant, a former country cop, said the fund would “future-proof” the force and ensure police have access to the latest crime-fighting technology, “freeing them up to spend more time on the beat, protecting the community”.
A separate $3.65 million will continue the rollout of body-worn cameras for frontline officers.

Treasurer Gladys Berejiklian said although the government has cut public sector wages growth, it was boosting frontline staff including police. The government will appoint 310 new police officers by 2018, including 250 specialist police and 15 specialist civilian staff. By the end of 2018, police numbers are expected to reach 16,795, up from 15,806 in 2011 when the government came to power. Of $69.6 billion total government spending on services next financial year, about 10 per cent will be devoted to public order and safety. Acknowledging the key role police play in combating family violence, the government will appoint 24 domestic violence specialist police. Spending on police expenses totals $3.3 billion. Over four years, $17.1 million will be used to support injured police. As part of a separate $178 capital works budget – the largest on record – police stations will be built or refurbished in Deniliquin, Gunnedah, Bay and Basin, Liverpool, Moss Vale, Tweed Heads, Lake Macquarie, Riverstone and Walgett.

The government has already announced an extra 1000 beds will be added to the state’s prison system, including a new private jail at Grafton and expansion of the Parklea Correctional Centre. NSW prisons are presently bursting at the seams due to tougher bail laws and law enforcement. The government has also allocated $4 million over two years to counter violent extremism through early itervention programs. NSW Attorney-General Gabrielle Upton promised to make access to justice faster and easier by investing in courts and expanding technology use in the justice system, saying “justice delayed is justice denied”. More than $227 million will be granted to the Legal Aid Commission of NSW, after the federal government cut legal assistance to the vulnerable.

Almost $32 million will be spent over four years building a new Coroner’s Court, in a joint project with NSW Health. Court buildings will be upgraded in Newcastle and Wagga Wagga, costing $31.6 million. Fire fighters and emergency services will receive $1.14 billion next financial year. Fire and Rescue NSW is allocated almost $700 million, plus funding to refurbish fire stations and the replacement of vehicles. The Rural Fire Service’s power to fight remote bushfires will be boosted by $9.8 million for large air tankers, plus funds for fire trails and volunteer training centres.

Read : smh.com.au/nsw/nsw-budgets-lawandorder-splurge-funds-hightech-policing-20150623-ghu978.html

Matthews Bark – “Judge Finds Wisconsin Voter ID Law Unconstitutional”

Source     : MS NBC
By              : Zachary Roth
Category : Attorney Matthews BarkMatthews Bark

Judge finds Wisconsin voter ID law unconstitutional
Judge Finds Wisconsin Voter ID Law Unconstitutional

In a major victory for voting rights, Wisconsin’s voter ID law has been struck down by a federal court, which found that it illegally discriminates against racial minorities. It’s the first time any federal court has struck down a voter ID law without relying on Section 5 of the Voting Rights Act (VRA), which was neutered by the Supreme Court last year. As such, it offers hope that even a weakened VRA can in some cases be used to stop the recent wave of Republican-led voting restrictions.In a ruling released Tuesday afternoon, District Court Judge Lynn Adelman found that the law, passed in 2011, violates both the Voting Rights Act and the U.S. Constitution’s 14th Amendment. He issued an injunction barring the state from enforcing the law. “The court’s decision today vindicates the voting rights of all Wisconsin citizens,” said Dale Ho, the director of the ACLU’s Voting Rights Project, which led the legal effort against the law. “I am disappointed with the order and continue to believe Wisconsin’s law is constitutional.,” said Attorney General J.B. Van Hollen, a Republican, in a statement. “We will appeal.” The ruling continues a string of wins for voting rights advocates across the country. Last week, a state court struck down Arkansas’s voter ID law. And in January, a state judge in Pennsylvania struck down that state’s voter ID law.

But this one could have even bigger implications if it stands. Never before has Section 2 of the VRA, which bars racial discrimination in voting, been used to strike down a voter ID law. Similar challenges, filed by the U.S. Justice Department, are currently pending against Texas’s voter ID law and North Carolina’s sweeping voting law, which includes a voter ID component. The ruling decisively rejects the logic of voter ID laws. “Virtually no voter impersonation occurs in Wisconsin,” Adelman writes, “and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future. Rejecting the state’s claim that the law is needed to promote public confidence in elections, Adelman writes, “Perhaps the reason why photo ID requirements have no effect on confidence or trust in the electoral process is that such laws undermine the public’s confidence in the electoral process as much as they promote it.” Most importantly, Adelman lays out how Section 2 of the VRA can apply to voter ID.

“Section 2 protects against a voting practice that creates a barrier to voting that is more likely to appear in the path of a voter if that voter is a member of a minority group than if he or she is not,” she writes. “The presence of a barrier that has this kind of disproportionate impact prevents the political process from being ‘equally open’ to all and results in members of the minority group having ‘less opportunity’ to participate in the political process and to elect representatives of their choice.” But Rick Hasen, a prominent election law scholar, cast doubt on whether Adelman’s view will survive the appeal. “It is not clear whether the appellate courts will agree or not agree with this approach, which would seem to put a number of electoral processes which burden poor and minority voters up for possible VRA liability,” Hasen wrote on his blog Wednesday afternoon. An appeal would land before the U.S. Court of Appeals for the Seventh Circuit, possibly giving Judge Richard Posner a fascinating chance for a do-over. Posner said late last year that he erred in upholding Indiana’s voter ID law—a decision upheld by the U.S. supreme Court—because he didn’t understand at the time how such laws can suppress the vote.

SOURCE : msnbc.com/msnbc/yet-another-voter-id-law-struck-down