In the wake of the Charleston shooting that left nine African-Americans dead in an apparent expression of racial animus, the debate over the display of the Confederate Flag on statehouse grounds has been reignited.
The media has emphasized the difficulty of removing the flag, citing a state law which requires a two-thirds majority to do so. The Los Angeles Times cited the two-thirds requirement in an article entitled “Why the Confederate flag won’t come down in South Carolina anytime soon.” The Washington Post wrote “Any change to the position of the flag requires two-thirds approval of the state legislature.” Poltifact rated the claim that “any changes” to the display of the Confederate flag in South Carolina required a supermajority vote as “true.”
But it isn’t true. Congressman James Clyburn (D-SC) explained:
Current SC law may require 2/3 vote to remove the Confed Battle flag but legislators could change that law w/ a simply majority. #takeitdown
— James E. Clyburn (@Clyburn) June 21, 2015
In an interview with ThinkProgress, South Carolina representative James Smith, who is also a practicing attorney, said he “agreed with the Congressman 100 percent.” According to Smith, the provision of the South Carolina law requiring a two-thirds vote for any changes is “facially unconstitutional.” If the state legislature, by a simple majority, voted to repeal the law and remove the Confederate Flag from statehouse grounds, Smith believes that South Carolina courts would deem that a valid exercise of legislative power.
The South Carolina Constitution requires constitutional amendments to be approved by a two-thirds majority. But the law regarding the display of the Confederate flag was not passed as a constitutional amendment. It is an ordinary piece of legislation.
Smith hopes, however, that this debate proves unnecessary. He says discussions are underway to extend the legislative session to consider legislation to remove the flag. “I think we’ll have more than a two-thirds vote when we get down to it,” Smith said.