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 considered putting a question on the ballot asking voters whether the county should "promote moving the Illinois-Missouri border to make Jersey County, Illinois a county of Missouri." That question was tabled, and the Jersey County State's Attorney asked the AG three things: can a county secede, what's the procedure, and how would Illinois value the public assets in the county.

Attorney General Kwame Raoul's answer is no, the county cannot secede. He reaches that conclusion by walking through three layers:

1. The Illinois Constitution. Non-home-rule counties (which is every Illinois county except Cook) have only the powers that the Constitution or a statute gives them. Article VII, section 7 lists those powers. Secession is not on the list. Article VII, section 2 governs how county boundaries can be changed, and it talks about transfers, mergers, and dissolutions within Illinois, not departure from the state. The 1970 Constitutional Convention specifically rejected language that would have allowed parts of Illinois to join other states, because the delegates "did not want to raise even the slightest hint" of that.

2. Illinois statutes. Neither the Counties Code nor the Election Code authorizes secession. The Counties Code allows boundary transfers, new-county formation, and unification with adjoining Illinois counties: all activities within the state. The Election Code allows non-binding advisory referenda but says binding questions of public policy must be specifically authorized by statute or by the Constitution. There is no Illinois statute that makes county secession a binding question.

3. The federal Constitution. Even if Illinois law allowed it, the U.S. Constitution would require consent from both Illinois's legislature and Missouri's legislature, plus Congress, before any territory could move between states. That has happened only a handful of times in U.S. history (Vermont, Kentucky, Maine, West Virginia were all admitted under similar arrangements), and the Supreme Court in Texas v. White and White v. Hart confirmed after the Civil War that a state cannot unilaterally lose territory.

Because the answer to question one is no, the AG declined to address the procedure or asset-valuation questions.

The opinion is short and definitive. It is most useful to county officials fielding constituent pressure on secession resolutions, and to journalists and educators who need a clean, sourced reference to give to readers.

What this means for you

If you serve on a county board

A non-binding advisory question of public policy on the ballot is permissible (10 ILCS 5/28-1; 55 ILCS 5/5-1005.5). Voters can express an opinion, the board can take it as a sense-of-the-electorate, and that's it. Anything more, declaring secession, voting to "leave" Illinois, redirecting tax payments away from the State, exceeds the board's authority and would be void as an act outside the powers of a non-home-rule unit. Redmond v. Novak and Inland Land Appreciation Fund make clear that a non-home-rule county acts beyond its powers when it does anything not granted by the Constitution or statute.

If a constituent group asks the board to put a binding secession question on the ballot, the board should:

• Decline to put it on as a binding question. Under 10 ILCS 5/28-1, a referendum has legal effect only if a statute or the Constitution authorizes it. None does for secession.
• Consider whether to put it on as a non-binding advisory question. That is allowed but politically and administratively costly.
• If it's already on the ballot, treat the result as advisory regardless of the wording.

If you're a county clerk or election authority

Treat any "secession" question as a non-binding advisory question, even if the proponents call it binding. Under 10 ILCS 5/28-1, if it is not authorized as binding by statute or the Constitution, it is not binding, full stop. You may want to add explanatory language on the ballot or in the voter pamphlet noting that.

If you're a voter or constituent advocating for secession

Two practical points. First, Illinois law gives you a vehicle for advisory referenda by petition under 10 ILCS 5/28-6. You can collect signatures, get the question on the ballot, and use the result as political use. Second, the actual mechanics of moving a county to another state require an act of the Illinois General Assembly, an act of the receiving state's legislature, and an act of Congress. Persuading any of those bodies is the real path. The county-level vote does not move the legal needle.

If you're a Missouri (or other adjoining-state) official

The opinion does not bind your state. But it does describe the Illinois-side legal posture. If your state were ever asked to absorb an Illinois county, both legislatures plus Congress would still need to act. The compact-clause and admissions-clause requirements are unavoidable.

If you're a journalist or educator

Cite this opinion when you need a sourced explanation that secession proposals are advisory at most. The opinion's discussion of the 1970 Constitutional Convention records is particularly clean: the framers explicitly rejected a clause that would have left the door open, because they did not want to suggest that Illinois could be dismembered by referendum.

Common questions

Q: Has any county ever successfully seceded from a U.S. state?
A: A handful of times, in unusual circumstances. Vermont was admitted with New York's consent in 1791. Kentucky split from Virginia in 1791. Maine split from Massachusetts in 1820. West Virginia separated from Virginia during the Civil War in 1863, with two of its counties (Jefferson and Berkeley) opting to join West Virginia in 1863 and Congress acknowledging the transfer in 1866. Each required the consent of both state legislatures and Congress. None happened by county-level vote alone.

Q: What is "home rule" and why does it matter here?
A: Home rule under the 1970 Illinois Constitution gives certain larger units of local government broad inherent authority to act on matters of local concern. Cook County is the only home-rule county in Illinois. Every other county is non-home-rule, meaning it has only the powers the Constitution or a statute specifically grants. Even if a home-rule county tried to claim secession authority, the Illinois Constitution does not authorize home-rule units to alter the State's borders.

Q: Can a county put any question on the ballot?
A: A county board may submit "a question of public policy" for an advisory vote (10 ILCS 5/1-3(15); 55 ILCS 5/5-1005.5). Voters may also petition for advisory questions under 10 ILCS 5/28-6. Binding questions, however, must be specifically authorized by statute or the Constitution under 10 ILCS 5/28-1.

Q: What about Jefferson and Berkeley Counties: they switched states.
A: The opinion specifically discusses Virginia v. West Virginia, 78 U.S. 39 (1870). Those counties moved during West Virginia's admission, with Congress's consent embedded in West Virginia's enabling act. It was an act of the U.S. Congress, not a county-level vote. The compact-clause requirement was satisfied through Congress's enabling legislation, and Virginia's later attempts to undo the transfer failed.

Q: What about House Resolution 102 from 2021 about creating a 51st state?
A: That was a non-binding resolution by Illinois Representative Halbrook urging Congress to declare 101 outstate Illinois counties (plus parts of Cook County wishing to be included) the 51st state. The opinion mentions it in a footnote as context. A non-binding resolution from one chamber of one legislature does not change anything; it is a political statement.

Q: If a non-home-rule county had no powers granted by statute or Constitution, what does it actually have authority to do?
A: Article VII, section 7 lists five powers: special-assessment improvements, adopting/altering forms of government by referendum, providing for officer selection, incurring debt (subject to limits), and levying additional taxes for special services. Anything beyond those, plus statutory grants in the Counties Code and other state laws, is outside a non-home-rule county's authority.

Q: Could Illinois's General Assembly authorize a binding secession referendum?
A: That is the harder question and the opinion does not reach it. The Illinois Constitution's local-government article does not authorize the General Assembly to dissolve the State by piecemeal county departures, and even if the General Assembly tried, federal admissions-clause and compact-clause requirements would still apply.

Background and statutory framework

How non-home-rule counties get their powers

Illinois follows Dillon's Rule for non-home-rule local government: the unit has only the powers expressly granted plus those necessarily implied to effectuate the express grants. Redmond v. Novak, 86 Ill. 2d 374, 382 (1981). Article VII, section 7 of the 1970 Illinois Constitution lists the inherent powers of non-home-rule counties (special assessments, form-of-government referenda, officer selection, debt, additional taxes for special services). Anything else has to come from a statute, typically the Counties Code at 55 ILCS 5/1-1001 et seq.

How county boundaries actually change in Illinois

Article VII, section 2(a) directs the General Assembly to provide by law for the formation, consolidation, merger, division, dissolution, and transfer of territory between counties. The Counties Code does this:

• 55 ILCS 5/1-2001 through 1-2007 allows neighboring Illinois counties to transfer territory by referendum.
• 55 ILCS 5/1-3001 through 1-3011 sets the procedure for forming a new county out of existing ones.
• 55 ILCS 5/1-4001 through 1-4018 allows two adjoining Illinois counties to unify into a single county.

Each of these contemplates activity within Illinois. None contemplates a county departing the state.

The 1970 Constitutional Convention's rejection of the secession clause

In drafting the 1970 Constitution, the Constitutional Convention's General Government Committee specifically rejected language proposed for the boundaries article that would have said "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 Article IV of the Constitution of the United States." The Committee's reason, recorded in the Convention's proceedings: they did not want to "raise even the slightest hint" of the suggestion that one portion of the State could break away from the rest. That history is the AG's strongest interpretive evidence that the State Constitution does not authorize secession.

The federal layer

The U.S. Constitution's admissions clause (Art. IV, § 3, cl. 1) and compact clause (Art. I, § 10, cl. 3) together require that any change in state borders affecting the formation, division, or merger of states be approved by the legislatures of all states involved and by Congress. The Supreme Court in White v. Hart and Texas v. White (Civil War-era cases) confirmed that a state cannot unilaterally leave the Union and, by extension, that a county cannot unilaterally leave a state.

Advisory referendum versus binding referendum

10 ILCS 5/28-1 is the key statute. It provides that questions of public policy "which have any legal effect" go to referendum only if a statute or the Constitution authorizes it. Otherwise, the question is non-binding. There is no Illinois law authorizing a binding county-secession referendum, so any such question on a ballot would be non-binding regardless of how it is worded. Voters may use 10 ILCS 5/28-6 to petition for advisory questions, and a county board may use 55 ILCS 5/5-1005.5 to place advisory questions on the ballot.

Citations and references

Constitutional provisions:
- Ill. Const. 1970, art. VII (Local Government)
- U.S. Const. art. IV, § 3 (admissions clause)
- U.S. Const. art. I, § 10, cl. 3 (compact clause)

Statutes:
- 55 ILCS 5/1-1001 et seq. (Illinois Counties Code)
- 10 ILCS 5/28-1 (binding versus advisory referenda)
- 10 ILCS 5/28-6 (advisory questions by petition)

Key cases:
- Texas v. White, 74 U.S. (7 Wall.) 700 (1868), secession not constitutionally permissible
- White v. Hart, 80 U.S. (13 Wall.) 646 (1871), analogizing to municipal subdivisions
- Virginia v. West Virginia, 78 U.S. 39 (1870), Jefferson and Berkeley County transfer
- Hunter v. City of Pittsburgh, 207 U.S. 161 (1907), counties as creatures of the state
- Redmond v. Novak, 86 Ill. 2d 374 (1981), non-home-rule unit powers

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.

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.

ANALYSIS

It is well established that non-home-rule counties, such as Jersey County, 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, 382 (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.

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. 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 between counties.
(b) County boundaries shall not be changed unless approved by referendum in each county affected.

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 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").

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 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 Article 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 slightest hint" of the suggestion "that one portion of this State could break away from the rest to become another state." 6 Record of Proceedings, Sixth Illinois Constitutional Convention 576.

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 territory between counties." 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 2022)). 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." 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 authorized to submit for consideration an "advisory question of public policy[,]" 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.

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. State boundary changes are governed by 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. The prevailing view was that a state cannot be dismembered without its consent. 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: Vermont (1791), Kentucky (1791), Maine (1820), and West Virginia (1862). Additionally, there are very few examples of established states exchanging counties or significant territory. While it is unclear whether 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.

CONCLUSION

For the reasons stated above, 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.

Sincerely,

KWAME RAOUL
ATTORNEY GENERAL