One of the major (but less -well appreciated) accomplishments of the new, bipartisan Electoral Count Reform Act is that it repealed the provision in federal law that permitted state legislatures to appoint electors if the presidential election had “failed” in their states. In December, 2020, I wrote an essay in the New York Times that the headline writes appropriately titled “There’s Still a Loaded Weapon Lying Around in our Election System.”

This “failed election” provision had been in federal law since 1845. The provision was designed to address election emergencies, such as natural disasters, that made the election possible, as well as to serve other anachronistic purposes I described in that essay. But the law failed to define a “failed election,” which could be the source of all sorts of mischief.

The ECRA got rid of this provision. Moreover, even if a natural disaster massively disrupts the election process in a state, federal law now provides that the solution must be a popular vote that takes place once voting is again possible. The federal law leaves it to state law to determine the proper authorities and procedures to use in these circumstances, which state laws on election emergencies (in those states that have such laws) determines.