Some southern California counties (of a conservative Republican persuasion) have begun an effort to break off from the rest of California and form a 51st state. The leaders of the campaign claim that the new state, Southern California, would be more financially responsible than the current government. Earlier this year, some liberals in the southern part of Arizona put forward the idea of having Pima County, (consisting of Tucson and its surrounding area) secede from what has become a very conservative state. How difficult will it be for either group to take such a step?
It is not unusual for one state to be formed from the territory of a larger state. Both Kentucky and West Virginia were once part of Virginia, Maine was once part of Massachusetts and Vermont was created out of the territory claimed by both New York and New Hampshire. Indeed, the framers anticipated such a possibility and included a specific provision in the Constitution for new states to be split from the territory of an existing state. Article IV, Section 3 of the Constitution states: "New States may be admitted by the Congress into this Union; but no new State shall be formed or created 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."
So to succeed in this venture, the area of the proposed new state must be carefully defined, and the inhabitants of that section must vote to form a new state. A constitution for the new state must be drafted and approved. It must then obtain consent from the state it wishes to leave as well as permission from Congress. No such action has occurred since West Virginia was formed in 1863 during the Civil War. Virginia's consent to form the new state was obtained under very questionable circumstances.
However, the idea of forming a new state has appealed to many political figures. It serves as a way of bringing attention to the problems created for the smaller community by improper impositions or questionable policies by the larger political entity.
New York City had such an experience over forty years ago. In 1969, Norman Mailer ran for mayor of the City (with Jimmy Breslin as his running mate) on the explicit program of making the City a 51st state. I was the lawyer for the campaign and laid out the procedures that had to be followed. Since Mailer came in fourth in the Democratic primary that year, not much was accomplished, except that some very beautiful posters were made illustrating what the new state would look like. I still have one in my office.
Two years later, in the summer of 1971, Representative Bella Abzug made a concentrated effort to split New York City off from the rest of the State, on the grounds that the City paid far more in taxes to New York State than it received back in benefits. She enlisted our Norman Mailer team to help in the campaign. She formed a "Committee to Make New York City a State," made up of many prominent New York political figures, including Percy Sutton, Robert Abrams and Joseph Addabbo.
Mayor John Lindsay gave qualified support for the project. Indeed his special assistant Leon Panetta (now the Secretary of Defense) urged this alternative in a memo to the mayor after the state legislature had refused to support various proposals for additional assistance for the City. In May, 1971 (even before Bella Abzug began her campaign), Panetta wrote to the mayor that the city "can no longer depend on a body of upstate legislators, who are out of touch with urban problems, to respond to the city's crucial needs." He endorsed the Mailer proposal: "Statehood -- while initiated somewhat facetiously during the last campaign -- is not an unrealistic possibility. . . . Indeed, it may well be the only sensible approach to governing New York City." He argued that it seemed "ludicrous that the largest city in the nation [should be] totally dependent for its fiscal and administrative survival on an annual begging session that results in little sympathy much less actual relief." In meetings with our group, Panetta discussed the procedure to accomplish statehood in great detail and seemed to endorse our efforts.
The first step involved placing on the ballot in November, 1971 a proposal to authorize a commission to convert the New York City Charter into a new state constitution. If that was approved, the people of the City would then vote, in June 1972, to elect delegates to a convention to draft the new state constitution. To accomplish this, we had to submit petitions to the city clerk signed by at least 45,000 voters. Bella Abzug began the campaign with a large rally in front of the Public Library in June 1971. She said, "When a state government run by farmers and fisherman and political opportunists can turn its back on a city in crisis, it is time to take a serious look at the prospects for obtaining control of our own destiny."
Governor Nelson Rockefeller took the matter so seriously that he had his budget chief attack the effort as "fraudulent," "irresponsible" and a "hoax." The report claimed that the City would lose money if it split off from the State and would have to raise local taxes substantially. It also noted that the State was responsible for assisting the City in many ways, such preserving and improving the city's watershed.
In September, 1971 we presented to the city clerk petitions signed by 55,398 persons. We thought we were home free, and the matter would be decided in our favor in the November election. But our petition was rejected by Herman Katz, the city clerk, on the grounds that 20,000 signatures were invalid. Many had been signed by 18 to 20 year old voters who had just been afforded the right to vote by the 26th Amendment. But Katz took the position that the signers of the petition had to be registered voters during the previous election in 1970. At that time, the younger group could not vote. Other signers were not found on the New York City voter rolls.
In addition, Mayor Lindsay had apparently changed his mind about supporting the effort. His corporation counsel advised the city clerk that the proposed commission did not have the power to convert the city charter into a new state constitution. We were later told that Lindsay was concerned that this rump, radical group of unknown commissioners might decide to make changes to the existing governmental structure that he did not approve. Thus the petition could not be placed on the ballot.
We immediately went to federal court to seek relief. Both a district court judge and the Court of Appeals promptly rejected our claims, stating that the clerk acted within the scope of his legal discretion. So that effort failed.
In the 1990's Mayor Guiliani would occasionally rumble about forming the city into a new state when he was rebuffed by Albany on some matter, but he made no serious efforts to move in that direction.
Based on this past history, the efforts by citizens in southern California and southern Arizona to control their our own destiny by forming new states are not likely to succeed.
Leon Friedman is a Professor of Constitutional Law at Hofstra Law School and was the legal adviser to the Mailer campaign for mayor and the Bella Abzub effort to make New York City a state.