Hans-Jürgen Papier, the former President of the Federal Constitutional Court, has issued a warning concerning the exclusion of AfD candidates from mayoral and district elections in Lower Saxony, cautioning against the potential for a “backdoor party ban.”
According to Papier, who spoke to the “Welt am Sonntag”, while electoral officials naturally have requirements regarding allegiance to the constitution, a review process itself is fundamentally acceptable. However, he stresses that great care and thorough justification must be exercised so that the impression is not created that a “minor party ban” is being implemented indirectly.
The retired public law professor grounds his advice in the fundamental “party privilege” enshrined in the Basic Law. He insists that only the Federal Constitutional Court should have the authority to determine if a party is unconstitutional. According to Papier, other state bodies must not effectively achieve the same outcome by triggering punitive legal consequences solely based on party membership, as this would undermine the party privilege.
This warning comes in the context of an renewed review process in Lower Saxony, approved by the parliament late last April. This process allows local electoral committees and election administrators to factor in assessments from the local supervisory authority and the Constitutional Protection Agency when deciding on a candidate’s adherence to the constitution.
Papier advises extreme caution in drawing conclusions about the individual eligibility of candidates from a mere administrative assessment of a party. Otherwise, it could give the impression that authorities are trying to achieve, through indirect means, what could only be accomplished through an official party ban. Furthermore, he clarifies that classifying a party as “securely right-wing extremist” is merely a working term used by the Constitutional Protection Agency to authorize surveillance measures, a term that is not recognized by the Basic Law. He adds that the Federal Constitutional Court is not bound by the assessments of these protection agencies in a banning procedure; rather, the relevant elements are the facts that have been established.
Looking specifically at a true party ban conducted through the Federal Constitutional Court, the former court president sees minimal prospects of success. The constitutional prerequisites for such a ban are described as exceedingly high. Offensive or extreme expressions alone are insufficient grounds for a prohibition. A party must actively, aggressively, and intentionally campaign against the liberal-democratic basic order, aiming for its elimination or impairment-this is the definitive standard.
Ultimately, the constitutional jurist warns that anyone repeatedly demanding such a ban runs the risk of being perceived as seeking to politically neutralize a competitor whom they cannot defeat through fair political competition. Given that a party ban constitutes a severe intrusion into the democratic political competition, any such procedure must be guided solely by the standards of the rule of law; mere political expediency is insufficient.
