Lawsuit asks SC Supreme Court to declare Heritage Act unconstitutional

Three prominent South Carolinians have filed a lawsuit with the S.C. Supreme Court asking the justices to declare the state’s Heritage Act unconstitutional.

The plaintiffs — a former Democratic legislator, a City of Columbia councilman and the widow of a state senator slain by a racist gunman — say the law, passed in 2000, unfairly requires future legislatures to meet an almost impossible standard of a two-thirds majority in each chamber in order to remove war monuments and other memorials in public spaces.

The Act also violates Home Rule laws that give local towns and counties control over local matters, the lawsuit says, adding, “This undermines the very essence of democracy.”

“The Act seeks to limit local government decisions, bind the current and future General Assemblies, and prevent the people of South Carolina from changing prior government decisions regarding who or what is honored and celebrated by public monuments, memorials and names of public places,” the lawsuit says.

The Heritage Act was passed in 2000 as part of a compromise that moved the Confederate flag from the top of the State House to a position of honor in front of the State House. It’s immediate effect was to make it almost impossible to remove the flag from its new perch.

The Act requires a two-thirds vote of the Senate and House to move most historical monuments or change historical names of any streets, bridges or other structures. At the time the Act was passed, its most ardent backers were whites who said the Confederate flag was a symbol of heritage and not hate toward Black people — a view of Southern history that ignored the injustices of slavery, which Confederates fought under the banner to preserve, and the Jim Crow era of lynchings and denial of civil rights.

That two-thirds threshold requiring a super majority is unconstitutional, the lawsuit says, noting that the Act itself did not garner that amount of support.

The three plaintiffs in the case are Jennifer Pinckney, Howard Duvall and former state Sen. Kay Patterson.

Pinckney is the widow of Clementa Pinckney, the state senator slain along with eight other African Americans in 2015 at Mother Emanuel AME Church by Dylann Roof, a white supremacist who revered the Confederate flag. Various historical markers and places memorializing the late Sen. Pinckney are in Charleston, Marion and Jasper counties.

Duvall is a Columbia city council member who is a member of the city’s Arts & Historic Preservation Committee. Kay Patterson is a former African American S.C. House and Senate member, long active in civil rights and social causes. Patterson has a historical marker memorializing his birthplace and accomplishments.

“Plaintiffs have personal stakes and interests in this litigation over the Act and have suffered and will continue to suffer from its continued enforcement preventing changes to monuments, markers and public streets and places,” the lawsuit says.

Duvall said Tuesday he joined the lawsuit because some residents of a downtown Columbia neighborhood are thinking of changing the name of Confederate Avenue, a street that runs through their mixed-race residential area.

The street runs toward a small Confederate cemetery, said Duvall, adding he is looking into how Confederate Avenue it got its name.

“I’m a strong proponent of Home Rule, and I think the Heritage Act is a violation of Home Rule,” Duvall said. The street apparently can’t be renamed except by a two-thirds vote of each Legislative chamber.

The lawsuit, filed by Columbia attorney Matthew Richardson and State Sen. Gerald Malloy, D-Darlington, says that “the Act’s deficiencies” have been illuminated in recent weeks “as citizens and local governing bodies have attempted to make changes to monuments and other historical landmarks.”

Defendants in the case are Senate President Harvey Peeler, R-Cherokee; House Speaker Jay Lucas, R-Darlington; and Gov. Henry McMaster. All are Republicans.

A spokesperson for Lucas said he had no comment at this time. Neither Peeler nor McMaster could be reached.

The lawsuit also points out that despite requiring a two-thirds, or 66% majority, only 60.5% of the S.C. House members voting were in favor of it.

Most lawsuits are filed in circuit court and find their way into the Supreme Court through appeals.

But the current lawsuit is asking the high court to take it in what is called “original jurisdiction” — to consider the case without it going through the lower courts.

Before hearing the case, the Supreme Court would first have to accept jurisdiction. It can do so if it finds the case to be of high public interest. It also helps if the facts of the matter are not disputed, meaning the arguments before the court would be about matters of law.

The time has come to declare the Heritage Act unconstitutional, the lawsuit says without mentioning specifically George Floyd, whose death in police custody sparked protests across the country, including efforts to do away with statues and monuments honoring white supremacy. A viral video from late May shows a white Minneapolis police officer kneeling on Floyd’s neck for nearly nine minutes while he pleads for breath. That officer, and three others who were witnesses, face charges in Floyd’s death.

Since Floyd’s death, The University of South Carolina and Clemson University have both moved to do away with public tributes to figures associated with the Confederacy and white racism.

Last month, the S.C. Attorney General’s office issued an opinion saying that no supermajority vote is needed by both chambers of the Legislature to change the Heritage Act.

“One legislature cannot bind another by statute (passing a law),” said the opinion, written by Solicitor General Robert Cook, Wilson’s top opinion writer.

But the Heritage Act itself — which seeks to preserve the history of South Carolina as memorialized in public spaces — is constitutional, Wilson ruled.

That opinion - with its strong finding that the supermajority vote required in the 2000 Heritage Act is unconstitutional - was cited in the lawsuit now before the Supreme Court.

An opinion by the attorney general is not as binding as a court ruling but is regarded as guidance by those who would like an informed decision on how a court might rule.

Peeler has publicly indicated he wants nothing to do with changing the state’s historical monuments.

“We’re working to help our businesses reopen and restart our economic engine and employ our citizens,” Peeler said on Twitter last month. “Changing the name of a stack of bricks and mortar is at the bottom of my to-do list.”

The Confederate flag was finally removed from State House grounds in July 2015, several weeks after Roof murdered the nine parishioners at a Bible study class in Charleston. Two-thirds of each Legislative chamber voted to remove it. Documents found in Roof’s possession after he was arrested included photos of him honoring the Confederate flag and burning the American flag.

This story was originally published July 21, 2020 at 5:28 PM.