Can an Illinois county like Jersey County secede from Illinois and join Missouri or another state?

Plain-English summary

In 2023, the Jersey County Board tabled a proposed question asking whether the county should promote "moving [the] Illinois-Missouri border to make Jersey County, Illinois a county of Missouri[.]" The State's Attorney then asked whether an Illinois county could secede, how it could do so, and how to value state assets in the county. Attorney General Kwame Raoul answered the first question: a non-home-rule county has no authority to secede from Illinois and join another state. He did not reach the procedure or asset-valuation questions.

The opinion applies the rule that non-home-rule counties possess powers expressly granted by the Illinois Constitution or statute, plus powers necessarily implied to carry out those grants. Article VII of the Illinois Constitution and the Counties Code address county boundary changes within Illinois; neither authorizes a county to leave the state. A county board may submit an advisory public-policy question, and voters may petition for one, but a secession referendum would have no binding legal effect.

The opinion also identifies possible federal obstacles if Illinois ever authorized a transfer. It says whether moving a single county forms a "new State" under the admissions clause is unclear. Under the compact clause, a boundary adjustment in which one state cedes territory to another would "likely require" congressional consent as well as the affected states' consent. Those questions do not change the opinion's conclusion about a non-home-rule county's existing authority.

What this means for you

County board members

The opinion says a board may put an "advisory question of public policy" before voters, potentially including a question about secession. It also says a vote on county secession would have no binding effect because Illinois law authorizes no binding referendum on that issue. The proposed Jersey County question was tabled; the opinion does not direct the board to submit it.

County voters

Footnote 7 says voters may petition to place a non-binding public-policy question on the ballot under 10 ILCS 5/28-6(a), (c). Such a vote would express a view; it would not move the county into Missouri or another state.

Officials considering state boundary changes

The opinion addresses the powers of non-home-rule Illinois counties. It says federal law would present additional hurdles if state law authorized a county transfer, but leaves open whether the admissions clause treats a single-county transfer as the formation of a new state. It describes congressional consent under the compact clause as likely required for a cession of territory.

Common questions

Q: Can Jersey County vote to leave Illinois and join Missouri?
A: A non-home-rule county lacks authority to secede. The AG concluded that any county secession referendum would have no binding legal effect.

Q: Can residents still put a secession question on the ballot?
A: The opinion says county boards may submit advisory questions and voters may petition for non-binding public-policy questions. A vote would remain advisory.

Q: Would a county transfer require approval from Congress?
A: The opinion says a transfer in which one state cedes territory to another would likely require congressional consent under the compact clause. It calls the admissions clause's application to a single-county transfer unclear. It does not prescribe a transfer procedure.

Q: Did Illinois consider a proposal for a 51st state?
A: Footnote 1 describes a 2021 resolution introduced by Representative Halbrook urging Congress to make 101 outstate Illinois counties and willing parts of Cook County a new state. The footnote also says the resolution reported 22 advisory county referenda in 2020. The opinion discusses the resolution as context for Jersey County's question.

Q: What happened with Jefferson and Berkeley Counties in West Virginia? A: Footnote 11 describes a Virginia and West Virginia agreement allowing certain Virginia counties to elect to join West Virginia. It says Congress consented to the compact, the counties voted to join in 1863, and Congress acknowledged the transfer in 1866. The AG did not treat that history as authority for Jersey County to act alone.

Q: How would Illinois value state parks, buildings, and roads if a county left? A: The State's Attorney asked that question, but the AG did not answer it because he concluded that non-home-rule counties cannot secede.

Background and statutory framework

Article VII, section 7, of the Illinois Constitution lists powers of non-home-rule counties. The opinion says none grants secession authority. Section 2 directs the General Assembly to legislate about formation, consolidation, merger, division, dissolution, and transfers of territory between counties, with a referendum in each affected county. The AG reads those provisions as concerning counties within Illinois, not a change to the state's border. The opinion also quotes 1970 convention records rejecting language about the formation of a new state from Illinois territory because the committee did not want to "raise even the slightest hint" that part of Illinois could break away.

The Counties Code permits transfers of territory among counties, formation of new counties, and unification with adjoining Illinois counties. The opinion says those provisions do not add secession as an option. Under the Election Code, a public-policy question with legal effect needs specific statutory or constitutional authorization. The AG found no Illinois law authorizing a binding secession referendum.

Footnote 8 cites White v. Hart and Texas v. White for the absence of a unilateral right to leave a state, while acknowledging that no Illinois or federal case directly addresses county secession. Footnote 11 discusses Virginia v. West Virginia and the transfer of Jefferson and Berkeley Counties. In its own federal analysis, the opinion calls the admissions clause's application to a single county unclear and says congressional consent for a territorial cession under the compact clause is likely required.

Citations and references

Constitutional provisions:

• Ill. Const. 1970, art. VII, §§ 2, 7 (county boundaries and non-home-rule powers)
• U.S. Const., art. IV, § 3, cl. 1 (admissions clause)
• U.S. Const., art. I, § 10, cl. 3 (compact clause)

Statutes:

• 55 ILCS 5/1-1001 et seq. (Counties Code)
• 55 ILCS 5/5-1005.5 (county board advisory questions)
• 10 ILCS 5/28-1 (legal effect of public-policy questions)
• 10 ILCS 5/28-6(a), (c) (voter petitions for non-binding questions)

Key cases:

• Redmond v. Novak, 86 Ill. 2d 374 (1981)
• White v. Hart, 80 U.S. (13 Wall.) 646 (1871)
• Texas v. White, 74 U.S. (7 Wall.) 700 (1868)
• Virginia v. West Virginia, 78 U.S. 39 (1870)

Source

• Index page: https://illinoisattorneygeneral.gov/opinions/
• Original PDF: https://illinoisattorneygeneral.gov/dA/266b7f9fc7/2023%2023-001%20COUNTIES%20%20Authority%20of%20Non-Home-Rule%20County%20to%20Secede%20from%20the%20State%20of%20Illinois.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS

KWAME RAOUL
ATTORNEY GENERAL

October 17, 2023

FILE NO. 23-001

COUNTIES:
Authority of a Non-Home-Rule County
to Secede from the State of Illinois

The Honorable Benjamin L. Goetten
State's Attorney, Jersey County
201 West Pearl Street
Jerseyville, Illinois 62052

Dear Mr. Goetten:

I have your letter inquiring: (1) whether an Illinois county may secede from the State of Illinois and join another state; (2) if the answer to the first question is in the affirmative, what is the process for applying for or enabling the county to secede; and (3) if the answer to the first question is in the affirmative, whether there is a process for estimating the value of current State of Illinois assets such as parks, buildings, and highways found in the county. For the reasons stated below, it is my opinion that non-home-rule counties, such as Jersey County, do not have the authority to secede from the State of Illinois and join another state. Therefore, it is not necessary to address your remaining questions.

The Honorable Benjamin L. Goetten - 2

BACKGROUND

According to the information you provided, a question arose at a Jersey County

Board meeting concerning the propriety of submitting a referendum question asking whether the

county should promote "moving [the] Illinois-Missouri border to make Jersey County, Illinois a

county of Missouri[.]" Although the question was tabled by the Jersey County Board, the Board

is nonetheless concerned that the issue will be raised again at some future date. Therefore, you

inquire whether an Illinois county may secede from the State of Illinois and join another state. 1

ANALYSIS

It is well established that non-home-rule counties, such as Jersey County,2 possess

only those powers expressly granted to them by the constitution or by statute, together with those

powers necessarily implied therefrom in order to effectuate the expressly granted powers. Ill.

Const. 1970, art. VII, § 7; Redmond v. Novak, 86 Ill. 2d 374, 3 82 (1981 ); Inland Land

Appreciation Fund, L.P. v. County of Kane , 344 Ill. App. 3d 720, 724 (2003); Ill. Att'y Gen. Op.

No. 15-002, issued March 20, 2015 , at 9. It is therefore necessary to review relevant provisions

of the Illinois Constitution of 1970 and Illinois statutes to determine whether non-home-rule

counties are authorized to secede from the State of Illinois and potentially affiliate with another

state.

1
As noted in the information you provided, some areas in Illinois have raised the idea of forming new states or moving state boundaries. For example, in 2021 , Representative Halbrook introduced a resolution to urge Congress to "declare the IO I counties of outstate Illinois, along with outlying areas of Cook County wishing to be included, the 51 st state of the United States of America and separate it from the rest of Illinois[.]" I 02nd Ill. Gen . Assem., House Resolution I 02, 2021 Sess. The resolution states that 22 Illinois counties passed advisory referenda in 2020 advocating to form a new state.
2 Cook County is the only Illinois county currently authorized to exercise home rule powers. See Ill. Const. 1970, art. VII , § 6.

The Honorable Benjamin L. Goetten - 3

The Illinois Constitution of 1970

The Illinois Constitution does not directly address the issue of county secession or

outline procedures to alter the State border by other means. Notably, as discussed below, the

local government article of the Illinois Constitution (Ill. Const. 1970, art. VII) , which delineates

the powers of non-home-rule counties and sets out the manner in which county boundaries may

be changed, does not grant counties the authority to secede from the State of Illinois.

Article VII, section 7, of the Illinois Constitution sets out the powers of non-

home-rule counties and provides, in pertinent part:

Counties * * * which are not home rule units shall have only powers granted to them by law and the powers (1) to make local improvements by special assessment and to exercise this power jointly with other counties and municipalities * * *; (2) by referendum, to adopt, alter or repeal their forms of government provided by law;l3l (3) * * * ;[4l (4) in the case of counties, to provide for their officers, manner of selection and terms of office as provided in Section 4 of this Article; (5) to incur debt except as limited by law and except that debt payable from ad valorem property tax receipts shall mature within 40 years from the time it is incurred; and (6) to levy or impose additional taxes upon areas within their boundaries in the manner provided by law for the provision of special services to those areas and for the payment of debt incurred in order to provide those special services. (Emphasis added.)

3
Section 7(2) of article Vil was "designed to encourage increased flexibility in the structure and operation of units oflocal general government" (7 Record of Proceedings, Sixth Illinois Constitutional Convention 1665), subject to the requirement that the form of government be provided for in the Constitution or by statute. 1991 Ill. Att'y Gen. Op. 7, 8. The Report of the Committee on Local Government of the Constitutional Convention of 1970 explains that the provision "contemplates that the General Assembly will provide for various patterns of county administrative organization * * * and that counties will be permitted to select among these plans by referendum ." 7 Record of Proceedings, Sixth Illinois Constitutional Convention I 667 .
4The third enumerated power set out in article VII , section 7, pertains only to municipalities .

The Honorable Benjamin L. Goetten - 4

Section 7 of article VII thus limits the powers of non-home-rule counties to the five powers

enumerated therein and any additional powers granted to them by statute. None of the

enumerated powers in article VII, section 7, of the Constitution expressly or impliedly grant non-

home-rule counties the power to secede from the State of Illinois.

Additionally, article VII, section 2, of the Illinois Constitution addresses the

manner in which county boundaries may potentially be changed and provides, in pertinent part:

(a) The General Assembly shall provide by law for the formation, consolidation, merger, division, and dissolution of counties, and for the transfer of territory benveen counties.

(b) County boundaries shall not.be changed unless approved by referendum in each county affected. [SJ (Emphasis added.)

Article VII, section 2(a), directs the General Assembly to enact laws governing the process of

creating new counties and merging, consolidating, dividing, dissolving, and transferring land

between existing counties. Nothing in article VII, section 2(a), addresses the concept of county

secession from the State or directs the General Assembly to provide a statutory procedure for the

secession of counties from the State. Further, unlike other changes to the configuration of

county boundaries contemplated by article VII, section 2(a), that occur wholly within the State's

borders, secession would remove territory from the State's possession and control and affect the

entire State's border. Although article VII, section 2(a), uses the general term "counties" rather

5Other provisions in article VII of the Illinois Constitution provide ad ditional instructions on ho w

permitted boundary changes are to take place. See Ill. Const. 1970, art. VII , § 11 (addressing the initiation and submission of authorized boundary-change referenda, the threshold number of votes required to adopt a referendum , and when a referendum shall be held) ; Ill. Const. 1970, art. VII , § 12 (providing that the General Assembly shall provide by law for the transfer of assets, powers and functions , and payment of debt after an authorized boundary change).

The Honorable Benjamin L. Goetten - 5

than "Illinois counties," the provision must be interpreted as applying exclusively to .counties

within the State. To interpret section 2(a) as directing the General Assembly to enact laws

governing the formation of counties in another state would be illogical and lead to absurd results.

People ex rel. Giannis v. Carpentier, 30 Ill. 2d 24, 29 (1964) ("The constitution should whenever

possible be construed to avoid * * * irrational, absurd, or unjust consequences"); Kaull v. Kaull,

2014 IL App (2d) 130175, ~ 54.

Additionally, article VII, section 2(b ), elaborates that the voters of the county

must approve any boundary changes authorized by the General Assembly under section 2(a) and

affecting the county. Nothing in section 2(b) authorizes referenda approval for counties to

secede from the State of Illinois. Accordingly, the Illinois Constitution of 1970 does not grant

non-home-rule counties the power to secede from the State of Illinois.

A review of records from the 1970 Constitutional Convention supports this

conclusion. First, in proposing to omit the boundaries article of the Illinois Constitution of 1870

(Ill. Const. 1870, art. I) (which purported to describe the State boundaries and jurisdiction) from

inclusion in the new Constitution, the General Government Committee of the Sixth

Constitutional Convention (the Committee) rejected a proposal that would have corrected the

boundaries and added that "nothing in this Article shall be construed to prevent the formation of

a new State or States by the junction of Illinois or any part thereof with any other State or States

or parts thereof, in accordance with the provisions of Section 3 of A1iicle IV of the Constitution

of the United States." 6 Record of Proceedings, Sixth Illinois Constitutional Convention 575 .

The Committee rejected this proposal because "the Committee [did] not want to raise even the

The Honorable Benjamin L. Goetten - 6

slightest hint" of the suggestion "that one portion of this State could break away from the rest to

become another state." (Emphasis added.) 6 Record of Proceedings, Sixth Illinois

Constitutional Convention 576; see also Remarks of Delegate Leahy, 2 Record of Proceedings,

Sixth Illinois Constitutional Convention 1068 (" [I]f we knocked the boundaries [article] out,

there was fear expressed by some delegates that somehow people would think that we had ceded

sovereignty").

Illinois Statutory Provisions

Counties Code

The Counties Code (55 ILCS 5/1-1001 et seq. (West 2022)) does not expressly

grant non-home-rule counties the power to secede. As described above, article VII, section 2(a),

of the Illinois Constitution instructs the General Assembly to "provide by law for the formation,

consolidation, merger, division, and dissolution of counties, and for the transfer of territ01y

between counties. '' (Emphasis added.) The General Assembly has enacted a corresponding set

of provisions within the Counties Code designed to fulfill this constitutional directive. For

example, section 1-1002 of the Counties Code (55 ILCS 5/ 1-1002 (West 2022)) provides that

"[t]he boundaries of the several counties of this State shall remain as now established until the

same be changed according to law." Pursuant to these provisions, counties may modify their

boundaries by transferring territory among themselves (55 ILCS 5/1-2001 through 1-2007 (West

2022)), by forming new counties out of existing ones (55 ILCS 5/1-3001 through 1-3011 (West

2022)), and by uniting with adjoining Illinois counties (55 ILCS 5/ 1-4001 through 1-4018 (West

The Honorable Benjamin L. Goetten - 7

2022)). 6 However, these provisions do not expand the options available under the Constitution

to include county secession. Therefore, the Counties Code does not grant non-home-rule

counties the power to secede from the State.

Election Code

Similarly, nothing in the Election Code (10 ILCS 5/ 1-1 et seq. (West 2022))

empowers counties to secede from the State of Illinois via binding referenda. Although Illinois

law enables counties to submit to voters "[q]uestion[ s] of public policy" which pertain to any

"subject matter other than the nomination or election of candidates" (10 ILCS 5/1-3(15) (West

2022); see, e.g., 55 ILCS 5/5-1005.5 (West 2022)), the law differentiates between when a

referendum on a question of public policy is legally binding or is merely advisory. Section 28-1

of the Election Code (10 ILCS 5/28-1 (West 2022)) provides that "[q]uestions of public policy

which have any legal effect shall be submitted to referendum only as authorized by a statute

which so provides or by the Constitution." (Emphasis added.) It follows that a referendum

asking voters whether a non-home-rule county should secede from the State will have no legal

effect unless either an Illinois statute or the Illinois Constitution specifically indicates that such a

question is subject to a legally binding referendum. There is no Illinois law that provides for a

legally binding referendum on the question of county secession. While county boards are

6
These statutory provisions also address the consequences following a boundary-change referendum, including how the affected counties shou ld account for property, the responsibilities of the affected county officers, and the effects of boundary changes on legislative and judicial apportionment. These consequences clearly evince an intent that boundary changes under these statutes take place within the State borders. For example, the county unification statute provides that county officials, including county board members and State's Attorneys, are to serve out their terms alongside the officials from the adjoining county. 55 ILCS 5/ 1-4008 through 1-4013 (West 2022). Section 1-4016 of the Counties Code (55 ILCS 5/1-4016 (West 2022)) further stipulates that legislative and judicial apportionment will remain the same following a unification referendum.

The Honorable Benjamin L. Ooetten - 8

authorized to submit for consideration an "advisory question of public policy[,]" 7 which might

permit counties to ask constituents for their opinion on secession-related topics (55 ILCS 5/5-

1005.5 (West 2022)), a vote on the subject would have no binding effect. 8 1983 Ill. Att'y Gen.

Op. 39, 39.

Federal Concerns

I further note that even if Illinois law authorized a county to secede from the State

of Illinois, proponents of county secession would face additional hurdles at the federal level. A

state's sovereignty over its territory is fundamental to our federal system and is a principle found

throughout the text of the United States Constitution. 9 State boundary changes are governed by

7
Similarly, county voters may petition to include on the ballot non-binding questions of public policy. 10 ILCS 5/28-6(a), (c) (West 2022).
8
Additionally, there are no Illinois or federal cases addressing the issue of county secession. In the wake of the Civil War, however, the Supreme Court confirmed that the United States Constitution does not permit states to secede from the Union. See Whit e v. Hart , 80 U.S. ( 13 Wall.) 646, 650-51 ( 1871) (comparing the attempted secession of southern states to a hypothetical situation where a county or other municipal subdivision of a state attempts an insurrection and explaining that a state has an inherent right to use "all the means necessary to put down the resistance to its authority, and restore peace, order, and obedience to law"); Texas v. Wh ite, 74 U.S. (7 Wali.) 700 (1868). While the circumstances of your inquiry differ, these decisions make clear that a county does not have the unilateral right to leave a state. These decisions also align with the long-held conclusion that municipal corporations and other political subdivisions are "conveni ent agenc ies" of the state. Hunter v. City of Pittsburgh, 207 U.S. 161 , 178 (1907). These subdivisions are created by the legis lature and derive all their power through it. Harris Trust & Savings Bank v. Village of Barrington Hills , 133 Ill. 2d 146, 153 ( 1989) ("It is universally recognized that municipal corporations are creatures of the State and that, absent const itutional restraints * * , they are subject to the will and discretion of the legis lature"); see also People v. Batterman , 355 lit. App. 3d 766, 769 (2005) (counties are "political subdivisions of States--counties * * --never were and never have been considered as sovereign entities but are considered subordinate governmental instrumentalities" (internal quotations omitted)), appeal denied, 215 Ill. 2d 600 (2005), citing Waller v. Florida, 397 U.S. 387, 392 (1970), quoting Reynolds v. Sims , 377 U.S. 533, 575 (1964).

9The tenth amendment of the United States Constitution defines the basic relationship between the federal government and the states. It embodies the principle that the federal government has only the powers enumerated in the Constitution, while the states possess all the powers the Co nstitution does not forbid . By contrast, the Constitution is silent on the powers of state political subdivisions such as counties.

The Honorable Benjamin L. Goetten - 9

the admissions clause (U.S. Const., art. IV, § 3, cl. 1) and the compact clause (U.S. Const., art. I,
§ 10, cl. 3). The admissions clause grants Congress the power to admit new states and prevents a subdivision of an existing state from breaking away without the state's consent: New States may be admitted by the Congress into this Union; but

no new State shall be formed or erected within the Jurisdiction of any

other State; nor any State be formed by the Junction of two or more States,

or Parts of States, without the Consent of the Legislatures of the States

concerned as well as of the Congress.
The issue of state consent was at the forefront of the debate over this clause. 2 Records of the Federal Convention of 1787, 455-56, 462-64 (Max Farrand ed., 1911). Some delegates objected to the state consent requirement because it would allow existing states to "keep the injured parts of the States in subjection[.]" Remarks of L. Martin, 2 Records of the Federal Convention of 1787, 463. However, the prevailing view was that a state cannot be dismembered without its consent. Remarks of Roger Sherman, 2 Records of the Federal Convention of 1787, 455. Despite the debate over the consent requirement, of the 37 states admitted under this clause, only

four states have been formed out of existing states.10 Additionally, there are very few examples

of established states exchanging counties or significant territory.11 While it is unclear whether

10
Vermont was admitted to the Union (1 Stat. 191 (1791)) with New York's consent. See 3 Records of the Governor and Council of the State of Vermont 459-60 (E. P. Walton ed., 1875). Kentucky was admitted to the Union with Virginia's consent. 1 Stat. 189 (1791). Maine was admitted with Massachusetts's consent. 3 Stat. 544 (1820). West Virginia was admitted during the Civil War from Virginia's territory. 12 Stat. 633 (1862).

11
For example, during West Virginia's admission process (see note 10), Virginia and West Virginia agreed that certain Virginia counties could elect to become part of West Virginia at some future date. Virginia v. West Virginia, 78 U.S. 39, 58-59 (1870). Congress consented to this compact when it passed West Virginia's enabling act, and Jefferson and Berkeley counties voted to join West Virginia in 1863. Virginia, 78 U.S. 39 at 58-61. Congress formally acknowledged the transfer in 1866. 14 Stat. 350 (1866).

The Honorable Benjamin L. Goetten - 10

the transfer of a single county would form a "new State" under the meaning of the admissions clause, it is evident that the framers intended that states could not be divided without their consent.

Additionally, the compact clause provides, in part, that "[n]o State shall, without the Consent of Congress * * * enter into any Agreement or Compact with another State[.]" While it is not necessary for Congress to assent to an agreement between states that merely defines a "true and ancient boundary" (Virginia v. Tennessee, 148 U.S. 503, 522 (1893)), any boundary adjustment that involves one state ceding territory to another would likely require congressional consent in addition to the consent of the affected states. See New Jersey v. New York, 523 U.S. 767, 811-12 (1998).

CONCLUSION

For the reasons stated above, it is my opinion that non-home-rule counties do not have the authority to secede from the State of Illinois. Accordingly, any referendum on the issue of county secession would have no binding legal effect.

Very truly yours,

KWAME RAOUL
ATTORNEY GENERAL