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[House Report 108-208]
[From the U.S. Government Publishing Office]

108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    108-208

======================================================================

 
          DISMISSING THE ELECTION CONTEST AGAINST BART GORDON

                                _______
                                

   July 15, 2003.--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. 318]

    The Committee on House Administration, having had under 
consideration an original resolution, dismissing the election 
contest against Bart Gordon, report the same to the House with 
the recommendation that the resolution be agreed to.

                            COMMITTEE ACTION

    On February 5, 2003, 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) 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)(1) 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)(1) of the Congressional Budget 
Act of 1974 are not applicable.

                           STATEMENT OF FACTS

    On December 5, 2002, 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 5, 2002. 
The other principal candidates for the Sixth Congressional 
District seat were incumbent Democrat Bart Gordon 
(``contestee'') and Republican challenger Richard L. Garrison. 
The results released by the Tennessee Secretary of State showed 
that the contestee received 117,034 votes; Mr. Garrison, 57,401 
votes; and the contestant, 3,065 votes. The Tennessee Secretary 
of State certified the contestee as the winner of the Sixth 
Congressional District seat on December 2, 2002.

                            BASIS OF CONTEST

    In the Notice of Contest, the contestant alleges that the 
contestee has committed violations of the Constitution that 
amount to acts of insurrection. To begin, the contestant claims 
that an incumbent member of Congress is required by the 
Constitution--specifically, (1) Article I, section 6, paragraph 
2 \2\ and (2) the 20th Amendment, section 1 \3\--to resign his 
or her seat prior to seeking re-election to that seat. 
According to the contestant, the contestee's failure to resign 
his seat prior to running for re-election rendered him an 
ineligible candidate for the seat.
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    \2\ ``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 encreased 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.''
    \3\ ``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.
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    Moreover, the contestant asserts 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 Legislative Officer of the 
United States.'' In the contestant's estimation, by allegedly 
contravening the aforementioned constitutional principles, the 
contestee qualifies as an ``insurrectionist'' who is breaching 
his sworn duty to support the Constitution, citing Article VI, 
clause 3.\4\ Therefore, according to the contestant, the 
contestee is constitutionally forbidden from holding federal 
office by clause 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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    \4\ ``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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    The contestant makes no allegations of irregularities, 
fraud, or wrongdoing with respect to the election for the Sixth 
Congressional District seat.\5\
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    \5\ The Committee notes that 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 does in 
this 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).
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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.\6\ 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 5, 2002 election. Thus, 
the first prong of the two-part test is met.
---------------------------------------------------------------------------
    \6\ 2. U.S.C. Sec. 382(a).
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    As to the second prong, the contestant states in his Notice 
of Contest that ``Contestant claims a right to Contestee's seat 
because, the Contestee was ineligible/not-qualified to be on 
the 5 November 2002 General Election Ballot.'' The contestant, 
however, fails to explain the logical connection between the 
contestee's alleged ineligibility and the contestant's 
entitlement to the contestee's congressional seat. It is 
unclear whether merely claiming a right to a contestee's seat 
without explaining the nexus between the alleged election 
deficiencies and the contestant's right to the seat is 
sufficient to establish standing.\7\ However, the Committee 
opts not to resolve this issue at this time, instead choosing 
to resolve this election contest on other grounds.
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    \7\ The Committee considers the contestant's claim that he has as a 
right to the Sixth Congressional seat in Tennessee to be meritless. As 
the contestant acknowledges in his own filings, he finished a distant 
third in the final vote totals. Even if we were to assume that Mr. 
Gordon 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 who received over 54,000 more votes than the 
contestant did. 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 (though he did submit a one-page letter 
dated January 3, 2003 that related to the matter). 
Nevertheless, the burden remains upon the contestant to provide 
credible allegations to the House sufficient to support a claim 
under the FCEA.\8\
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    \8\ Id. Sec. 385.
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                                ANALYSIS

    As a threshold matter, 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.
    As noted above, the contestant does not advance a single 
allegation of irregularity or fraud in the conduct of the 
election for Tennessee's Sixth Congressional seat. In addition, 
the contestant raises no objections regarding the accuracy of 
the vote totals certified by the Tennessee Secretary of State 
that showed him receiving 2 percent of the vote and Mr. Gordon 
receiving 66 percent. Rather, the contestant's Notice of 
Contest relies exclusively on his contention that Mr. Gordon 
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 common 
interpretation of the FCEA. Consequently, the Committee 
concludes that the contestant's arguments regarding Mr. 
Gordon'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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