39–006 

109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 109–57 

DISMISSING THE ELECTION CONTEST IN THE SIXTH 

CONGRESSIONAL DISTRICT OF TENNESSEE 

APRIL 27, 2005.—Referred to the House Calendar and ordered to be printed 

Mr. NEY, from the Committee on House Administration, 

submitted the following 

R E P O R T 

[To accompany H. Res. 239] 

The Committee on House Administration, having had under consideration an original resolution, dismissing the election contest in 

the Sixth Congressional District of Tennessee, report the same to 

the House with the recommendation that the resolution be agreed 

to. 

COMMITTEE ACTION

On February 9, 2005, by voice vote, a quorum being present, the 

Committee agreed to a motion to report the resolution favorably to 

the House. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee states that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(I) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

STATEMENT ON BUDGET AUTHORITY AND RELATED ITEMS

The resolution does not provide new budget authority, new 

spending authority, new credit authority, or an increase or decrease in revenues or tax expenditures. Thus, clause 3(c)(2) of rule 

XIII of the Rules of the House of Representatives and the provisions of section 308(a)(I) of the Congressional Budget Act of 1974 

are not applicable. 

2 

1 2 U.S.C. §§ 381–96. 

2 H. Res. 318, 108th Cong. (2003); see H. Rept. 108–208. The Contestant also brought a case 

in federal district court in Tennessee challenging the qualifications of the Contestee, in which 

he set forth the same arguments as he did in his previous election contest. On May 29, 2003, 

the district court dismissed with prejudice the Contestant’s case. Lyons v. Thompson, No. 3:02– 

1004 (M.D. Tenn. May 29, 2003). 3 Emphases in the original. 

4 ‘‘No Senator or Representative shall, during the Time for which he was elected, be appointed 

to any civil Office under the Authority of the United States, which shall have been created, or 

the Emoluments whereof shall have been increased during such time; and no Person holding 

any Office under the United States, shall be a Member of either House during his Continuance 

in Office.’’ 5 ‘‘The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the 

years in which such terms would have ended if this article had not been ratified; and the terms 

of their successors shall then begin.’’ 6 According to the Contestant, each current incumbent Member who served in the previous 

Congress similarly violated the Constitution by not resigning before running for re-election, and 

STATEMENT OF FACTS

On December 28, 2004, J. Patrick Lyons (‘‘Contestant’’) filed with 

the Clerk of the House of Representatives a Notice of Contest captioned ‘‘J. Patrick Lyons, Contestant, v. Bart J. Gordon, Contestee.’’ 

The document, prepared by the Contestant, was filed pursuant to 

the Federal Contested Elections Act (‘‘FCEA’’).1

The Contestant ran as an Independent for the seat in the Sixth 

Congressional District of Tennessee on November 2, 2004. The 

other principal candidates for the Sixth Congressional District seat 

were incumbent Democrat Bart Gordon (‘‘Contestee’’), Republican 

challenger Nick Demas, and Independent challenger Norman R. 

Saliba. The results released by the Tennessee Secretary of State 

showed that the Contestee received 167,448 votes; Mr. Demas, 

87,523 votes; the Contestant, 3,869; and Mr. Saliba, 1,802. The 

Tennessee Secretary of State certified the Contestee as the winner 

of the Sixth Congressional District seat on December 7, 2004. 

BASIS OF CONTEST

In the Notice of Contest, the Contestant alleges that Representative Gordon should be disqualified from serving as a Member of the 

House of Representatives for violating several different provisions 

of the Constitution of the United States. The substance of the notice is virtually identical to a Notice of Contest filed against the 

Contestee by the Contestant following the 2002 election—a challenge that was dismissed by the House on July 15, 2003.2

At the outset of the notice, the Contestant flatly states: 

This Election Contest IS NOT based on alleged fraud, 

wrongdoing, and/or irregularities with respect to the conduct of said November 2, 2004 General Election nor, does 

Contestant challenge the accuracy of the vote totals certified by the Tennessee Secretary of State on 7 December 

2004, certifying the Contestee—Bart Gordon, the winner of 

the Sixth U.S. Congressional District seat.3

Rather, the Contestant premises his contest on a convoluted argument that an incumbent member of Congress is required by the 

Constitution—specifically, Article I, section 6, clause 2 4 and section 

1 of the 20th Amendment 5—resign his or her seat prior to seeking 

re-election to that seat. Thus, according to the Contestant, the 

Contestee’s failure to resign his seat prior to running for re-election 

made him ineligible to be a candidate for the Sixth District seat.6

3 

thus the Contestant requested that ‘‘each such Member should voluntarily disqualify himself/ 

herself from any participation in this Election Contest.’’ 7 ‘‘The Senators and Representatives before mentioned, and the Members of the several State 

Legislatures, and all executive and judicial Officers, both of the United States and of the several 

States, shall be bound by Oath or Affirmation, to support this Constitution * * * ’’ 8 2. U.S.C. § 382(a). 

9 According to House precedent, if a Member-elect is found to be disqualified, a losing congressional candidate is not entitled to the seat. See U.S. Const., Parliamentarian’s Notes § 13, House 

Rules and Manual, H.R. Doc. 107–284 (2003). 10The Committee considers the Contestant’s claim that he has a right to the Sixth Congressional seat in Tennessee to be completely without merit. The Contestant finished a distant third 

in the final vote totals, trailing the Contestee by over 163,000 votes and the Republican challenger by over 83,000 votes. Even if we were to assume the Contestee was ineligible to serve 

in Congress, the Contestant has put forth no reasons why he would be more entitled to the seat 

than the second-place finisher. Therefore, the Contestant does not appear to be in a position 

to claim a right to Tennessee’s Sixth Congressional seat. 

The Contestant further contends that the Contestee, who is an 

inactive member of the Tennessee Bar, is violating the separation 

of powers principle enshrined in the Constitution by remaining a 

judicial officer of the Courts of Tennessee while serving as a member of the federal legislature. The Contestant thus believes these 

alleged constitutional breaches qualify the Contestee as an insurrectionist who is violating his sworn duty under Article VI, clause 

3 7 to support the Constitution. Therefore, the Contestant argues 

that the Contestee is constitutionally forbidden from holding federal office by section 3 of the 14th Amendment, which states: ‘‘No 

person shall be a Senator or Representative in Congress, * * * 

who, having previously taken an oath, as a member of Congress, 

* * * to support the Constitution of the United States, shall have 

engaged in insurrection or rebellion against the same * * * ’’ 

STANDING

To have standing under the FCEA, a Contestant must have been 

a candidate for election to the House of Representatives in the last 

preceding election and claim a right to the Contestee’s seat.8 In the 

instant case, the Contestant’s name was printed as a candidate for 

the Sixth Congressional District on the official ballot for the November 2, 2004 election. Thus, the first prong of the two-part test 

is met. 

As to the second prong, the Contestant asserts in his Notice of 

Contest that as ‘‘the only ‘duly qualified’ candidate having filed an 

Election Contest, [I] must be recognized as entitled to the seat— 

and, be seated immediately.’’ As in his previous contest, the Contestant fails to explain the logical connection between the 

Contestee’s alleged ineligibility to serve in the House of Representatives and the Contestant’s entitlement to the Contestee’s congressional seat.9 However, the Committee opts to resolve this election 

contest on other grounds.10

TIMING/NOTICE

The Notice of Contest appears to have been served upon Congressman Gordon and filed within the appropriate time structures 

of the FCEA. 

RESPONSE BY MR. GORDON

The Contestee did not file a formal answer in response to the Notice of Contest. Nevertheless, the burden remains upon the ConVerDate Aug 04 2004 02:40 Apr 30, 2005 Jkt 099695 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR057.XXX HR057
4 

11 Id. § 385. 

testant to provide credible allegations to the House sufficient to 

support a claim under the FCEA.11

ANALYSIS

Since the Contestant’s arguments are the same as those he advanced in his contest of the 2002 election, the same analysis used 

to dispose of that matter is applicable here. To restate what the 

Committee stated then, the Committee will proceed to consider a 

Notice of Contest only if the notice states grounds sufficient to 

change the result of an election. In other words, a Contestant must 

allege irregularities, fraud, or wrongdoing with respect to the conduct of an election that, if proven, would likely overturn the original election outcome. Otherwise, the Committee will recommend 

dismissal of the contest. 

In his Notice, the Contestant specifically states that his contest 

‘‘is not based on alleged fraud, wrongdoing, and/or irregularities,’’ 

and that he does not ‘‘challenge the accuracy of the vote totals certified by the Tennessee Secretary of State.’’ Instead, the Contestant 

relies exclusively on his contention that the Contestee was not 

qualified either to run for Tennessee’s Sixth Congressional seat or 

to serve in the Congress if elected. 

The Committee finds that, as a general matter, challenges to the 

qualifications of a member-elect to serve in the Congress fall outside the purview of the FCEA, which was designed to consider allegations relating to the actual conduct of an election. Nothing in the 

Contestant’s Notice of Contest persuades the Committee to re-consider this longstanding interpretation of the FCEA. Consequently, 

the Committee concludes that the Contestant’s arguments regarding the Contestee’s qualifications to serve in Congress do not constitute grounds sufficient to change the result of the election and, 

therefore, recommends that this election contest be dismissed. 

Æ