BILL ANALYSIS Ó
AJR 26
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Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AJR 26
(Weber) - As Amended July 8, 2015
As Proposed to be Amended
SUBJECT: Removal of the Confederate flag and symbols
KEY ISSUE: should the legislature encourage congress to ban
display of confederate flags on federal property and encourage
states to ban the use of confederate symbolism in state flags,
seals, and symbols?
SYNOPSIS
The tragic shootings at an African Methodist Episcopal church in
Charleston, South Carolina, have prompted some national soul
searching about the propriety of Confederate symbols in the
public square. As is well known, the shooter was a white
supremacist who, literally, wrapped himself in the Confederate
Battle Flag in one of his social media postings. After long and
passionate debates in both houses of the South Carolina
legislature, Governor Nikki Haley signed legislation on July 9,
2015, requiring the removal of the Confederate Battle Flag from
the grounds of the South Carolina capitol building. According
to the author, to whatever extent the flag may have once been a
symbol of southern secession, it has since been used by
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Neo-Nazis, Neo-Confederates, the Ku Klux Klan and other hate
groups to elicit fear and promote hate and intolerance toward
people of color, especially African Americans. This resolution,
therefore, calls upon Congress to ban the sale and display of
the Confederate flag on federal property and encourage the
states to similarly ban the use of Confederate symbols and
remove them from state flags and seals. The resolution would
encourage that these symbols be donated to local, state, and
national museums. Although the author anticipates possible
"states' rights" and First Amendment objections, the resolution
as recently amended makes it clear that Congress would only ban
Confederate symbols from federal property, and it would only
encourage the states to do the same and to remove Confederate
symbols from existing flags and seals. This resolution does not
appear to raise First Amendment issues either, for it does not
ask Congress to prohibit any private citizen from displaying
Confederate symbols; it merely asks that the government itself
not use that form of expression. The resolution raises not a
constitutional but a policy question: do we want government to
officially display and thereby legitimate a symbol identified
first with the defense of slavery, and subsequently with Jim
Crow segregation, the terrorism of the Ku Klux Klan, racial
disenfranchisement, "massive resistance" to civil rights
legislation, and, as resurfaced most recently, a long history of
white supremacy and violence.
SUMMARY: Encourages Congress to ban government use or display
of the confederate flag on federal property and encourage the
states to ban Confederate symbolism in state flags, seals, and
symbols. Specifically, this measure:
1)Makes various findings and declarations relating to the
history of race relations in the southern United States in the
antebellum South, the origins of the Civil War, the subsequent
symbolism of the Confederate Battle Flag from the period of
Reconstruction to the Civil Rights era of the 1950s and 1960s,
the rise of Neo-Confederate hate groups in contemporary
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America, and the recent shootings in Charleston, South
Carolina, and the resulting calls to remove the Confederate
Battle Flag from the South Carolina capitol building and
through the southern United States.
2)Resolves, in light of the above findings and declarations, the
following:
a) That the Legislature of California encourages the United
States Congress to identify the states that have a
Confederate symbol embedded into their state's flag.
b) The Legislature memorializes the United States Congress
to encourage states to ban use of Confederate States of
America symbolism and seals from all state flags, seals, or
symbols.
c) That the Legislature memorializes the United States
Congress to ban the sale and display of any Confederate
flag on federally owned properties and buildings and to
urge those states that sell or display any such flag at
their capitols to have the flag removed.
d) That the Legislature encourages the United States
Congress to encourage businesses to urge their states to
take down any Confederate flag from their capitols.
e) That the Legislature encourages the donation of any
effects representing the former Confederate States of
America to local, state, and national museums.
f) That the Chief Clerk of the Assembly shall transmit
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copies of this resolution to specified state and federal
officials.
EXISTING LAW:
1)Holds that when the government speaks, it is not barred by the
Free Speech Clause from determining the content of what it
says. A government is generally entitled to promote a
program, espouse a policy, or take a position. (Pleasant
Grove City v. Summum (2009) 555 U. S. 460; Walker v. Texas
Division, Sons of Confederate Veterans (June 18, 2015) 135 S.
Ct. 2339.)
2)Prohibits the State of California from selling or displaying
the Battle Flag of the Confederacy, also referred to as the
Stars and Bars, or any similar image, or tangible personal
property, inscribed with such an image unless the image
appears in a book, digital medium or state museum that serves
an educational or historical purpose. (Government Code
Section 8195.)
FISCAL EFFECT: As currently in print this resolution is keyed
non-fiscal.
COMMENTS: The tragic shootings at an African Methodist
Episcopal church in Charleston, South Carolina, have prompted
some national soul searching about the propriety of Confederate
symbols in the public square. As is well known, the shooter was
a white supremacist who, literally, wrapped himself in the
Confederate Battle Flag in one of his social media postings.
(He was also, apparently, a fan of the apartheid regime in South
Africa.) After long and passionate debates in both houses of
the South Carolina legislature, Governor Nikki Haley signed
legislation on July 9, 2015, requiring the removal of the flag.
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(The Confederate Battle Flag was removed from the top of the
South Carolina capitol dome in 2000, where it had flown since
1962, but it remains on the capitol grounds near a Confederate
soldier's memorial.) According to the author, to whatever
extent the flag may have once been a symbol of southern
secession, it has since been used by Neo-Nazis,
Neo-Confederates, the Ku Klux Klan and other hate groups to
elicit fear and promote hate and intolerance toward people of
color, especially African Americans. This resolution,
therefore, calls upon Congress to ban the sale and display of
the Confederate flag on federal property and encourage the
states to remove Confederate symbols from state buildings,
flags, and seals. The resolution would encourage that any
Confederate flags or other effects be donated to local, state,
and national museums.
Constitutional Considerations: Individual vs Government Speech.
The courts have regularly held that the "Confederate flag
conveys political, ideological, cultural, or other messages
protected by the First Amendment." (Defoe v. Spiva (2010) 625
F.3d 324, 332.) Constitutionally, it does not matter whether
one sees the Confederate flag as a symbol of racism and slavery,
or a symbol of "states' rights." Whatever political,
ideological or cultural belief one attaches to the Confederate
flag, the First Amendment has long been held to protect one's
right to express it. Nor does it matter, constitutionally, that
some find the Confederate flag offensive; indeed, the First
Amendment is almost always invoked to protect speech that
someone finds offensive, since as a general rule no one seeks to
repress inoffensive speech. Any law that restricts the
expression of symbolic speech, solely because the government
disagrees with the content of that speech or the message that it
conveys, is deemed to be a "content-based" restriction and is
subject to the most exacting scrutiny by the courts. (Police
Department of Chicago v. Mosely (1972) 408 U.S. 92, 95-96.)
Restricting private persons from selling or displaying
Confederate flags on government property - insofar as the state
otherwise permitted the sale or display of similar items on that
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property - would therefore likely be a form of content-based
viewpoint discrimination that would be held to be invalid.
However this resolution only calls upon Congress to prohibit the
display of a Confederate flag on federal property and encourage
the states to impose similar bans and remove Confederate symbols
from existing flags and seals. This approach appears to be
entirely consistent with cases such as Sons of Confederate
Veterans v. City of Lexington, Virginia (2013) 722 F.3d 224,
227. In that case, the Sons of Confederate Veterans (SCV) had
requested permission from the Lexington (Virginia) City Council
to use flag standards affixed to light poles during a
"Lee-Jackson Day" parade honoring Robert E. Lee and Stonewall
Jackson. The City had previously permitted other private groups
- including a private college and college fraternities - to use
the standards to fly their respective school flags and banners.
Although the City granted the request to SVC on this occasion,
at its subsequent city council meeting, it enacted an ordinance
declaring that city flag standards could only be used to display
the flag of the United States, the flag of the Virginia
Commonwealth, or the flag of the City of Lexington.
SCV filed an action alleging that the ordinance violated the
First Amendment. The Court disagreed, holding that the flag
standards were only a "designated public forum," meaning they
were government property open to private speech only so long,
and to the extent that, the government permitted it. The
government was "free to reserve its equipment purely for
government speech," and the government no longer chose to speak
the anachronistic language of the Confederacy. (Id. at 232.)
In the session that just ended, the U.S. Supreme Court once
again upheld the government's right to dissociate itself from
Confederate symbols. The Court ruled that the Texas Department
of Motor Vehicles did not violate the free speech clause of the
First Amendment when it rejected the SCV's application for a
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"specialty" license plate that included an image of the
Confederate Battle Flag. The Court reasoned that because
license plates are issued by the government and bear the name of
the state and often include mottos that honor or promote the
state, they have historically been seen as representing speech
that the state endorses. The government, as a speaker,
therefore, has the right to control its messages. The Court
held that when the government speaks, it is not barred by the
free speech Clause from determining the content of what it says.
A government is generally entitled to promote a program,
espouse a policy, or take a position. (Walker v. Texas
Division, Sons of Confederate Veterans (2015) 135 S. Ct. 2239,
citing Pleasant Grove City v. Summum (2009) 555 U. S. 460.)
This resolution would seem to raise even less of a
constitutional issue than policies at issue in the Texas and
Lexington cases discussed above. Those cases presented a
colorable conflict between the government's right to convey its
preferred message and the ability of individuals to use
government property to convey a different or even contrary
message. This resolution, however, does not present any
competing individual free speech claim.
The Meaning of Confederate Symbols and the Origins of the Civil
War. This resolution is, of course, part of a wider national
conversation generated by the South Carolina tragedy. The
question of whether it is proper for a government to continue
displaying Confederate symbols appears to be closely tied to how
one understands the Civil War and the "cause" for which the
Confederacy fought. (Compare e.g. Eugene Robinson, Bringing
down a Twisted Fantasy with Ben Boychuk, Efforts to Sanitize Our
Past are an Attack on History, Sacramento Bee, July 10, 2015.)
According to the author, to whatever extent the Confederate
flags ever stood for principles of "secession" or "state's
rights," it also undoubtedly stood for the preservation of
slavery. In the post war period, according to the resolution,
Confederate flags became associated with white supremacy, the
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rise of the Ku Klux Klan, segregation, and resistance to the
Civil Rights movement of the 1950s and 1960s. Historians who
have studied the changing interpretations of the origins of the
Civil War and place of the Civil War in American memory seem to
agree that the primary cause of Southern secession was the
desire to preserve the institution of slavery and not to defend
states' rights. This was especially apparent in the conflict
over the return of fugitive slaves.
Prigg v. Pennsylvania and the Myth of States' Rights. The
ability of Southerners to selectively invoke states' right was
nowhere better illustrated than in the pre-Civil War case of
Prigg v. Pennsylvania (1842). That case considered whether the
Fugitive Slave Clause of the U.S. Constitution and Fugitive
Slave Act of 1793 preempted the "personal liberty" laws enacted
by Northern states. Without ever using the word "slave," the
Fugitive Slave Clause (U.S. Const., Article IV, Section 2) says
that any "person held to service of labor" that escapes to
another state is not "discharged from such service or labor, but
shall be delivered up on claim of the party to whom such service
of labor may be due." This constitutional provision does not
say how a claim could be made or how a slave would be "delivered
up" to the party making the claim. Congress established a
bare-bones procedure with the Fugitive Slave Act of 1793, which
allowed a slave owner or his "agent" to capture the alleged
runaway and bring him or her before any state or federal judge
to obtain a "certificate of removal." This certificate allowed
the owner or agent to forcibly take the alleged runaway back to
the owner. Hoping to protect free black citizens from wrongful
seizures, Northern state legislatures enacted what became known
as "personal liberty" laws. These laws supplemented federal law
by requiring agents to meet state evidentiary and due process
requirements, including a requirement that any alleged "runaway
slave" receive a jury trial to determine his or her status.
While the Fugitive Slave Law required agents to obtain a
"certificate of removal" from state courts, the personal liberty
laws asserted the state's right to impose minimum standards when
agents came before its courts.
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In Prigg v. Pennsylvania, the agent of a Southern slave owner
sought to take Margaret Morgan from Pennsylvania, where the
census listed her as a "free person of color," back to a man in
in Maryland who claimed to own Morgan. Using the higher
standards of Pennsylvania's personal liberty law, the court
refused to issue Prigg, the owner's agent, a certificate of
removal. When Prigg attempted to take Morgan back to her
alleged owner without a certificate, he was arrested and charged
with kidnapping. Prigg's appeal eventually reached the U.S.
Supreme Court. The question before the court was whether the
federal Fugitive Slave Act preempted Pennsylvania's personal
liberty law and its higher evidentiary standards. Justice
Joseph Story, a New Englander who opposed slavery but, being a
former Federalist, believed in a strong national government,
issued a mixed ruling. First, he held that the Pennsylvania
state law was preempted by the federal law, which was the
"exclusive" manner for returning fugitive slaves (or as we might
say today, it "occupied the field" on the return of fugitive
slaves.) But Story then went on to say that while Pennsylvania
could not pass a law that conflicted with federal law, the
states were not required to enforce or participate in the
execution of that federal law. If the federal government wanted
to return fugitive slaves, it could use its own federal courts
and federal marshals. State courts and sheriffs could not
interfere with federal removal, but they need not take part in
it.
Chief Justice Roger Taney, a Southern slave owner and later the
author of the infamous Dred Scott decision, wrote a concurring
opinion. Taney agreed with the central holding - that federal
law preempts state law - but he wrote separately to object to
Story's suggestion that states could not be compelled to
participate in the enforcement of federal law. Federal law not
only preempted state law, Taney believed; it compelled state
officials to enforce federal law. If Southerners were supposed
to believe in states' rights, no one had told Taney. Like other
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Southerners, he apparently invoked states' rights when it
protected slavery and abandoned it when it threatened slavery.
(Prigg v. Pennsylvania reprinted in Hall, et.al. American Legal
History: Cases and Materials 233-237 (4th Ed. 2014).)
The South Carolina Declaration of Secession. Taney was not
alone in his views. South Carolina, the first state to secede
from the Union, announced its decision to the world with a
"Declaration of the Immediate Causes Which Induce and Justify
the Secession of South Carolina," in December of 1860. The
Declaration's central contention is that the Union should be
dissolved because the federal government had failed to live up
to its promise, especially by failing to force Northern states
to comply with federal law. After Northern states started to
follow Story's cue by passing laws prohibiting the use of state
courts and sheriffs to enforce federal law, the South demanded a
stronger Fugitive Slave law to compel Northern assistance, which
they obtained with the Fugitive Slave Act of 1850 as part of the
compromise that brought California into the Union as a free
state. But even this law was not strong enough for South
Carolina, as Northern states allegedly continued to pass laws
and behave in ways that skirted federal law. Defenders of the
view that the South stood for "states' rights" usually cite the
Declaration's "compact theory" of the federal constitution - the
idea that sovereign states had made the compact and sovereign
states could leave it. But defenders of the states' rights
interpretation of the origins of the Civil War ignore the fact
that South Carolina justified secession by claiming that the
federal government had failed to use its power against the right
of Northern states to establish their own court procedures and
evidentiary standards. The South Carolina Declaration cited the
efforts of Northern states to "nullify Acts of Congress" as
evidence of "an increasing hostility of the part of the
non-slaveholding States to the institution of slavery." The
final straw was the election of Abraham Lincoln. The
Declaration quoted Lincoln's statement that "Government cannot
endure permanently half slave, and half free," to argue that
Lincoln planned to abolish slavery in the South (despite
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Lincoln's repeated assurances that he only sought to prevent the
extension of slavery into the Western territories). Lincoln's
Republican Party, the Declaration claimed, sought not only to
exclude slavery from the territories, it wanted to wage war
"against slavery until it shall cease to existing throughout the
United States." ("Declaration" reprinted in Hall, supra
253-255.)
The Revival of Confederate Flag and "States' Rights" after the
Civil War. According to a number of historians, the argument
that the South had fought the Civil War to protect "states'
rights" did not emerge until the 1880s or 1890s. In separate
works, historians David Blight, Thomas Brown, Cecilia O'Leary,
and James Loewen, suggest some possible reasons for this
reinterpretation. First, these historians argue that late-19th
century efforts at national "reconciliation" between North and
South required a changed understanding of the causes of the war.
The South could only be reconciled, and the efforts of its
troops honored, if the war was about something other than
slavery. By the 1890s, it was easier to honor the South and its
Confederate soldiers if they had fought for constitutional
principles, as opposed to the defense of slavery. It was also
during the 1880s and 1890s that Southern states faced the first
challenges to its Jim Crow segregation laws, most notably in the
Civil Rights Cases of 1883 and Plessy v. Ferguson in 1896 which
gave us the "separate but equal" doctrine. The states' rights
argument was convenient in that context, and the
re-interpretation of the Confederate "cause" gave it an
historical pedigree. While the declarations issued by the
Southern states at the time of the war claimed that the war was
about the preservation of slavery, the writings of the 1890s
greatly diminished the role of slavery and suggested that the
war had been about states' rights and Southern honor. (See e.g.
David Blight, Race and Reunion: the Civil War in American
Memory; Thomas J. Brown, Public Art and the Commemoration of the
Civil War; Cecilia O'Leary, To Die For: the Paradox of American
Patriotism; James Loewen, Five Myths About Why the South
Seceded, Washington Post, February 26, 2011.)
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Just as interpretations of the causes of the Civil War have
changed over time, so too have the meanings associated with the
Confederate Battle Flag. To begin with, there were several
confederate flags. The flag recently removed from the South
Carolina capitol grounds was not the official flag of the
Confederate States of America. Rather, the flag so often
referred to as the Confederate flag is the Battle Flag of the
Army of Northern Virginia, the flag that Robert E. Lee's troops
carried into battle. The first flag of the Confederate States
of America (1861-1863) - also known as the "Stars and Bars" -
had a circle of stars on a blue field in the upper left hand
corner, with red and white bars running horizontally across the
flag. This flag was abandoned in 1863 because it was felt that
it looked too much like the U.S. flag. The second and third
versions of the flag of the Confederate States of America
contained an image of Lee's "battle flag" in the upper hand left
corner. Lee's Battle Flag of the Army of Northern Virginia
eventually came to be known as the "Confederate Battle Flag" to
distinguish it from the official flags of the Confederate States
of America. Also known as the "Southern Cross," the more
familiar Confederate Battle Flag that stirs controversy today
has blue bars containing white stars in an X-shape over a red
background. To make matters more confusing, in the 20th century
the Confederate Battle Flag also became popularly referred to as
the "Stars and Bars," even though that term originally applied
to the first flag of the Confederate States of America.
Beyond the changing names and iterations of the Confederate
flags, of far deeper significance is the changing meaning given
to these symbols, especially the Confederate Battle Flag.
Whether most people who saw the Confederate Battle Flag in the
1860s saw symbol honor, states' rights, defense of slavery, or
some combination thereof, there is little question that its
meaning and popularity changed greatly over time. For example,
in 2000, while the first debate was raging over the flag on the
South Carolina dome, the state of Georgia commissioned a study
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on the history of Georgia's incorporation of the battle flag in
its state flag of 1956. Shortly after this report, in 2001, the
Georgia state flag was altered again to remove the image of the
Confederate Battle Flag. In a remarkably candid report, the
study concluded that before the 1940s, the Confederate Battle
Flag was rarely seen in public places, as it was used mostly for
annual Confederate commemorations and veterans' parades. In
these instances, the commission noted, "the flag had simply
become a tribute to Confederate veterans." It was only in the
late-1940s, the Commission concluded, that "the battle flag took
on a different and more politically charged meaning." The
following passage from the report is worth quoting at length:
In 1948, the battle flag began to take on a different
meaning when it appeared at the Dixiecrat convention in
Birmingham as a symbol of southern protest and resistance
to the federal government - displaying the flag then
acquired a more political significance after this
convention. Georgia of course, changed its flag in 1956,
two years after Brown v. Board of Education was decided. In
1961, George Wallace, the governor of Alabama, raised the
Confederate battle flag over the capitol dome in Montgomery
to commemorate the hundredth anniversary of the Civil War.
The next year, South Carolina raised the battle flag over
its capitol. In 1963, as part of his continued opposition
to integration, Governor Wallace again raised the flag over
the capitol dome. Despite the hundredth anniversary of the
Civil War, the likely meaning of the battle flag by that
time was not the representation of the Confederacy, because
the flag had already been used by Dixiecrats and had become
recognized as a symbol of protest and resistance. Based on
its association with the Dixiecrats, it was at least in
part, if not entirely, a symbol of resistance to federally
enforced integration. Undoubtedly, too, it acquired a
racist aspect from its use by the Ku Klux Klan, whose
violent activities increased during this period. However,
it is important to remember that in spite of these other
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uses, there remained displays of the battle flag as homage
to the Confederate dead, with no racist overtones.
(Georgia State Senate. Senate Research Office, The State
Flag of Georgia: The 1956 Change in its Historical Context,
2000, pp. 7-8.)
In short, whatever the original meaning of the Confederate
Battle Flag, and even though some still may see in the flag an
homage to the Confederate dead, the Georgia study concluded that
it had taken on much more ominous meanings after 1948. Given
the reality of these meanings, this resolution essentially asks
that the federal and state governments not fly a controversial
flag that symbolizes ideas that most Americans no longer share
and many others find downright hurtful. In the national debate
generated by the South Carolina tragedy, there seems to be a
growing consensus that government should no longer officially
display such a divisive symbol. If private citizens wish to fly
a Confederate flag - whether they do so to honor the sacrifice
of common Confederate soldiers or to promote white supremacy -
the First Amendment protects their right to do so. But a
growing number of Democrats and Republicans, liberals and
conservatives, seem to agree that it may be time for governments
to stop displaying Confederate symbols. A recent article by
Reihan Salam, in the conservative National Review Online, noted
that the flag may have different meanings at different times,
and no doubt means different thing to different people. "But,"
Salam asks, "is [the Confederate flag's] value such that we
ought to continue giving it quasi-official status, even when
doing so alienates the descendants of enslaved southerners, who
have just as much claim to deciding which symbols out to
represent ought represent southern heritage as the descendants
of Confederate Veterans. I don't believe so." The author and
co-authors of this resolution do not believe so either.
ARGUMENTS IN SUPPORT: According to the author:
In the early 1860's, war broke out in the United States
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over the northern states that wanted to abolish slavery and
those in the southern states that wanted to maintain the
status quo. In this Civil War, the south erected many flags
that were meant to symbolize their independence from the
greater American union. . . . Since the Civil War ended
the [Confederate Battle Flag] . . . has been utilized, not
only as a symbol of southern secession; rather, it has also
been utilized by hate groups such as the Neo-Nazi's, Ku
Klux Klan, and Neo-Confederates to illicit fear, purport
hate, and promote discrimination to various racial and
ethnic groups, specifically African Americans.
AJR 26 calls upon U.S. Congress to encourage other states
in the nation to ban the display and sale of the
Confederate Flag and all effects pertaining to it, from
state capitols as well as government owned buildings and
properties. This resolution also encourages U.S. Congress
to encourage businesses to urge their states to take down
the flag from their capitols and suggests that the flag be
placed in a museum, and deliver a copy of the resolution to
the states that still use the flag and/or its symbolism.
AJR 26 also recognizes this following the events of Dylann
Roof, the individual that opened fire in a church in
Charleston, South Carolina.
Author's Technical Amendments: In order to address some of
understandable confusion surrounding the several flags by
political and military institutions of the Confederacy, and
the various official and popular names associated with them,
the author will take the following amendments to the
resolution's binding resolves in this Committee (the
"Whereas" provisions, in part, detail the history of the
various iterations of the flag):
- On page 6 lines 12-13 strike "the Confederate flag" and
insert: any Confederate flag, including the Confederate
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Battle Flag,
- On page 6 line 19 strike "the Confederate flag" and insert:
any Confederate flag, including the Confederate Battle Flag,
- On page 5 line 37 strike "the" and insert "a"
REGISTERED SUPPORT / OPPOSITION:
Support
None on file
Opposition
None on file
Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334
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