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[House Report 109-57]
[From the U.S. Government Publishing Office]

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. 

                           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\
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    \1\ 2 U.S.C. Sec. Sec. 381-96.
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    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
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    \3\ Emphases in the original.

    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\
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    \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 thus the Contestant 
requested that ``each such Member should voluntarily disqualify 
himself/herself from any participation in this Election Contest.''
---------------------------------------------------------------------------
    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 * * * ''
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    \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 * * 
* ''
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                                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.
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    \8\ 2. U.S.C. Sec. 382(a).
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    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 tothe Contestee's congressional seat.\9\ However, 
the Committee opts to resolve this election contest on other 
grounds.\10\
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    \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 Sec. 13, House Rules and 
Manual, H.R. Doc. 107-284 (2003).
    \10\ The 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.
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                             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 Contestant to provide credible allegations to the House 
sufficient to support a claim under the FCEA.\11\
---------------------------------------------------------------------------
    \11\ Id. Sec. 385.
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                                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.

                                  
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