On the same day his office argued that the Texas Supreme Court should stop election administrators from advising voters about claiming a "disability" to get a mail-in ballot, Texas Attorney General Ken Paxton appealed a federal judge's ruling that said all Texans can vote by mail during the COVID-19 pandemic. The U.S. Court of Appeals for the Fifth Circuit has stayed the order pending appeal.

U.S. District Judge Fred Biery of the Western District of Texas in San Antonio determined that voters who do not have immunity to the coronavirus are eligible for a mail-in ballot under the Texas election code's definition of "disability." He prohibited counties from rejecting these mail-in ballot applications, or failing to accept and count those votes.

Biery is the second judge to reach that conclusion. The first was 353rd District Judge Tim Sulak of Austin. Both rulings are on appeal, now that Paxton's office Wednesday appealed Biery's ruling to the Fifth Circuit.

"Two-thirds of all election fraud cases prosecuted by my office involve mail ballot fraud, also known as 'vote harvesting,'" said Paxton in a statement. "Allowing widespread mail-in ballots will lead to greater fraud and disenfranchise lawful voters."

Texas Supreme Court

The state argued that Biery's order shouldn't impact the Texas Supreme Court's ruling in a related case.

In the case, Texas Solicitor General Kyle Hawkins in an oral argument Wednesday said the state seeks mandamus relief for the high court to order county election administrators that they must reject mail-in voting applications from voters who aren't eligible for a vote-by-mail ballot. The state wants the court to tell clerks that they can't encourage voters to give false information on the applications, and order them to stop giving voters incorrect information about the mail-voting law on their websites and statements.