—Angelo Sathayu Sathorn, final year law student passionate about democracy, public law, and human rights
The use of barcodes and QR codes in the February 2026 Thai General Election
On February 8th 2026, Thais once again headed to the polls. This time, there was a barcode on party-list ballots and a QR code on constituency ballots. These codes were present on both the actual ballot sheet and the ballot stub. Voters had to provide a fingerprint or signature on the stub. Usually, this does not lead to the voter’s identity being exposed, as such stubs are removed from the rest of the ballot sheet when the latter is placed into the ballot box. Nonetheless, on this occasion, the appearance of the codes has compromised voter identity. Both the barcode and QR code are unique to each individual ballot and include a running number matching the serial number on the ballot stub. This allows ballot sheets to be traced back to their corresponding ballot stubs, thus exposing voter identity and choice.
Once the public became aware, anger towards the Electoral Commission began to mount. Many voters, already concerned about the lack of transparency over the Electoral Commission’s work, began to occupy polling stations and demanded a recount. Some also initiated legal challenges. Accordingly, there are at present many cases pending against the Electoral Commission in both Thailand’s Administrative and Constitutional Courts, in relation to the use of barcodes and QR codes in the recent election. A central question in all these cases is whether the Electoral Commission’s use of barcodes and QR codes violated the principle of secrecy in elections. That principle is found in Section 85 of the Thai Constitution B.E. 2560 (2017). Section 85 provides the following.
‘Members of the House of Representatives who are elected on a constituency basis shall be elected by direct suffrage and secret ballot. Each constituency shall elect one member, and each person having a right to vote has the right to cast one vote in an election, where a vote may be cast in favour of any candidate for election, or no candidate at all.’
The provision forms the legal basis for the principle of secrecy under Thai constitutional law, as it provides for MPs to be elected through a “secret ballot”. In this post, I argue that the Electoral Commission should not be able to know how individual voters cast their ballot with reference to Section 85, which I contend also covers the Electoral Commission.
Privacy from the EC
Having established that the barcode and QR code allowed voter choice and identity to be inferred by the Electoral Commission, the question is whether this constitutes a violation of Section 85. This rests upon our answer to the question of who or what is not allowed to know a voter’s identity or choice. My argument here is that Section 85 and the principle of secrecy do not merely cover privacy vis-a-vis other voters, but also, and even more importantly, privacy vis-a-vis State institutions, including the Electoral Commission. This is so for two reasons.
Firstly, the aim of the principle of secrecy is to ensure that a voter’s decision remains autonomous and independent from the influence of others. “Others” are both fellow voters and those in power. A key threat to the independence of voter choice is the fear of facing negative consequences for casting one’s ballot in a particular way. If a voter’s choice could be exposed, they could be exposed to reprisals by those who consider that they have made the “wrong” choice. Clearly, both fellow citizens and State institutions might be incentivized to engage in retaliatory action due to their ideological beliefs.
Secondly, the application of the principle of secrecy to state agencies like the Electoral Commission has been confirmed in Constitutional Court Decision 9/2549 (2006). This case concerned the constitutionality of the April 2006 Thai General Election. In this case, the Court deemed the 2006 elections unconstitutional, based on a violation of the principle of secrecy. The main issue, according to the Thai Constitutional Court, was how the Electoral Commission had placed the ballot boxes. It found that this has been done in a way that allowed local Electoral Commissions, which consisted of local MP candidates, to have an unobstructed view into the voter booth and to hence see voters make their choice. This decision subsequently led to criminal proceedings, adjudication, and the imposition of sanctions on members of the Electoral Commission. I believe that this case sets a clear standard that the principle of secrecy as protected by Section 85 covers the privacy of voters from the Electoral Commission.
Some may question whether it is desirable to use what was a highly politicized judicial decision as the applicable legal standard. To be fair, the 2006 decision just mentioned was handed down at a time of extreme political volatility for Thailand, namely the mass demonstrations directed at overthrowing former Thai Prime Minister Thaksin Shinawatra, and at a time when judicial intervention was considered necessary to help solve Thailand’s political issues. It also directly preceded the unconstitutional military coup, which took place later on in September 2006. The 2006 decision was accordingly handed down in a deeply sensitive and arguably controversial political context. However, it would be unwise to discard the entirety of the jurisprudence reflected due to its undemocratic connotations. The decision may be undemocratic, but that does not mean that the entirety of jurisprudence is so. In other words, the result, the solution, may be unreasonable in a democratic constitutional order context, but that does not mean the entirety of the analysis is unreasonable. Certain aspects of the jurisprudence reflected can still be of value and offer guidance in how we should interpret the law in a democratic constitutional order. Furthermore, at the end of the day, it is a legally valid judgement, and binding on all branches of government, including Independent Organs like the Electoral Commission, by virtue of Article 211(4) of the Thai Constitution B.E. 2560 (2017).
Nonetheless, some may argue that the Electoral Commission’s use of barcodes and QR codes cannot be a violation of Section 85, as the principle of secrecy covers only privacy from other voters and the public, but not privacy from State institutions. Proponents of this view will most likely invoke Constitutional Court Decision 3/2561 (2018). In that case, Thailand’s (at the time) military-appointed national legislature asked the Constitutional Court to review draft legislation which aimed to facilitate the exercise of the right to vote by “disadvantaged groups”, such as disabled or elderly voters. In this case, the Thai Constitutional Court had to rule on whether a provision of the draft law, which provided that local Electoral Commission officials can assist members of such “disadvantaged” voters in the ballot box, violated the principle of secrecy. The Court ruled that such a provision did not violate the principle of secrecy, because the disadvantaged voter’s choice was not open to the public, so it still counted as a “secret vote”.
However, such an interpretation should not be seen as correct. It rests upon a narrow interpretation of “secrecy”, whereby only the voter and members of the entity collecting and counting the votes are permitted to know a voter’s choice. This view is, however, contrary to the purpose of the principle of secrecy and Section 85, which aims to protect voter choice from any form of undue influence, whether it emanates from other individuals or a state entity. Respected Thai legal scholar, Bawornsuk Uwanno, has argued slightly differently that the principle covers “privacy from those who are not empowered to access such secret information”. This approach seems more in line with the purpose of the principle of secrecy, as generally, state agencies are not empowered to access information regarding elections. However, it could still be problematic if paired with the argument that the Electoral Commission is empowered to access such information.
What next?
I hope that the preceding critical discussion has demonstrated that the proper interpretation of the principle of secrecy within Section 85 of the Thai Constitution, in a democratic constitutional order, covers privacy from the EC. Without this broad interpretation, which also includes the Electoral Commission, the privacy of voter choice cannot be protected. At a time when democratic backsliding seems to be the norm, protecting the privacy and independence of voters’ voices has become an even more imperative task. The risk that voters will be intimidated by either state actors or non-state actors is unacceptable and must be lowered to zero. A healthy democracy is one ruled by the deliberation of and consensus of the people, not by fear or intimidation. In the context of Thailand, a place with a history of state-sanctioned repression, violence, and impunity, it would be impossible to say that the risk of intimidation by state actors is non-existent. The Thai people, as with every other people on this planet, deserve to be able to reasonably expect that their state officials will act in line with the law of the land. Therefore, the affirmation of a broad interpretation of the principle of secret voting is one that not only protects democracy by protecting the voice of voters, but also one that will protect democracy by ensuring legal certainty and the rule of law. Without legal certainty and the free and independent voice of the electorate, there is no rule of law. Without the rule of law, there is no democracy.
Suggested citation: Angelo Sathayu Sathorn, Can an Electoral Commission Know Voter Choices? A Constitutional Perspective on the Use of Barcodes in the Recent Thai General Election, Int’l J. Const. L. Blog, May 1, 2026, at: http:?/www.iconnectblog.com/can-an-electoral-commission-know-voter-choices-a-constitutional-perspective-on-the-use-of-barcodes-in-the-recent-thai-general-election/