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The Confederate flag lawsuit ‘that never was’

Attorneys, NAACP had complaint ready in case lawmakers refused to remove the flag

By: Phillip Bantz//August 12, 2015

The Confederate flag lawsuit ‘that never was’

Attorneys, NAACP had complaint ready in case lawmakers refused to remove the flag

By: Phillip Bantz//August 12, 2015

As lawmakers in South Carolina’s House of Representatives debated late into the evening over a bill to remove the Confederate flag from the grounds of the State House, Columbia lawyer Joe McCulloch sat at his desk with a lawsuit that was at least 21 years in the making.

“It was a walk to the Supreme Court and a check away from being filed,” he says. “Happily, it is the suit that never was.”confederateflag

The suit was the brainchild of Alex Sanders, a politician and former chief judge of the state Court of Appeals who had been in favor of removing the flag since the early 1960s, when it was first hoisted above the State House dome to celebrate the centennial of the Civil War.

He joined with McCulloch who, in 1994, was part of a team of lawyers led by Richard Gergel, also of Columbia, that represented then-Columbia Mayor Bob Coble and a list of prominent local businessmen in the first legal effort to bring down the flag. Their suit challenged the Legislature’s authority to fly the flag over the State House.

The state Supreme Court rejected the action and punted to the Legislature after concluding that the complaint centered on a political issue, rather than a legal one, McCulloch said. Lawmakers later moved the flag from the dome to the grounds of the State House as part of the Heritage Act of 2000, which required a two-thirds majority vote of each house of the General Assembly to take down the flag going forward.

The supermajority provision extended far beyond the flag, applying to proposed changes to all monuments on public property, including schools and streets that are named in honor of members of the Confederacy. The Heritage Act was trumpeted as a compromise, but the new law made it virtually impossible to move the flag – or alter any other monuments – ever again.

In 2008, McCulloch teamed with Sanders and attempted to resurrect the earlier flag lawsuit under a different legal theory. This time they attacked the two-thirds rule, arguing that it was “an unlawful and unauthorized exercise of legislative power in violation of numerous clauses of the South Carolina Constitution and U.S. Constitution.”

“The provision violates the implicit and explicit presumption in the state Constitution that laws must be passed by a simple majority,” the complaint stated. “The provision also denies certain individuals and groups the equal protection of the laws.”

But he and Sanders and the South Carolina State Conference of the NAACP, which spearheaded the effort, failed to drum up enough support among lawmakers, including members of the legislative black caucus, to file the suit.

“It just goes to show you that people [legislators] don’t vote based on what’s best for the citizens,” said Lonnie Randolph, president of the state NAACP. “It’s called power and influence. Black legislators do the same thing as white legislators when it comes to the issue of effecting their influence.”

Sanders added that even if the suit had been successful and the two-thirds rule was replaced with a simple majority vote, the flag still would have stayed on the Capitol grounds because very few lawmakers at the time were interested in pursuing its removal.

“We couldn’t get any enthusiasm from anybody to do this,” he said. “People inside and outside the Legislature said the issue was resolved by the compromise [Heritage Act] and there’s no point in stirring this up now.”

The lawsuit was shelved for nearly seven years, gathering dust in McCulloch’s office until the evening of June 17, 2015, when Dylann Roof entered the Emanuel African Methodist Episcopal Church in downtown Charleston and killed nine black parishioners during a Bible study meeting.

‘Trip down hypocrisy lane’

Photos later surfaced of Roof, a 21-year-old white man, posing with a Confederate flag. He allegedly told investigators that he committed the mass shooting because he wanted to ignite a race war.

Suddenly, the flag that had flown for decades at the State House became a cause célèbre. Legislators who had backed away from McCulloch and Sanders’ earlier efforts with the NAACP were now interested in filing the old suit.

“This is a little trip down hypocrisy lane,” McCulloch said. “The governor [Nikki Haley] and many members of the General Assembly did not view the flag as an issue. When this tragedy occurred, because of the national attention being focused, they seemed to climb out of their foxholes and started talking about taking the flag down.”

A spokesman for Haley did not respond to a request for comment. She called for the removal of the flag after the shooting, but previously had not supported McCulloch and Sanders’ efforts with the NAACP, they said.

Sanders added, “This issue wasn’t resolved until the blood of nine innocent people greased the rails to put it back on track.”

Some legislators wanted McCulloch and Sanders to file their suit following the shooting – they had state Rep. John King, chair elect of the black caucus, signed on as the lead plaintiff – which would have added to the already intense pressure to remove the flag. But they opted to wait.

“It was our firm believe that the General Assembly should be left to do what it should do, that it didn’t make sense to file a lawsuit and metaphorically put a gun to their heads,” McCulloch said.

He added that the Legislature did the right thing when more than two-thirds of its members voted to remove the flag, though Randolph, head of the state’s NAACP, asserted that lawmakers were motivated by “embarrassment and shame.”

“South Carolina doesn’t do anything because it’s right,” he said. “It’s done because they’re forced to do it.”

A new legal fight

McCulloch and Sanders have returned their suit to the shelf, but a civil rights lawyer in Charleston named Armand Derfner has picked up where they left off. He filed a suit in May seeking to overturn the entire Heritage Act.

Derfner represents military veterans in Greenwood who want to desegregate a list of residents who fought together in both world wars but whose names are separated into columns for “white” and “colored” on a plaque for a public memorial. They have been unable to secure the two-thirds vote from the Legislature that is required to change the plaque.

“A monument that was erected 75 years ago says to the world, ‘This American Legion believes in segregation,’” Derfner said. “Now, the state Legislature is telling these [veterans] that they can’t change the message.”

“You know,” he added, “in Russia they pulled down statues of Lenin and Stalin.”

Follow Phillip Bantz on Twitter @SCLWBantz

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