Potentially challenging democracy's foundations, the AfD might pose a threat.
Following the state elections in Saxony and Thuringia, the AfD is celebrating victories. In Erfurt, they lead the race, securing 32.8% of the votes, while in Dresden, they come second, earning 30.6% of the votes. This substantial increase in support for the right-wing party is deeply concerning for democratic institutions, according to researchers. The belief in a robust rule of law may be overstated.
After the state elections, champagne corks are popping in the blue camp. According to preliminary results, in Erfurt, the AfD is leading the race with a significant lead over the CDU. In Dresden, support for the party is also growing significantly, placing second behind the Christian Democrats.
This strong AfD result signifies a significant shift to the right in both Thuringia and Saxony. The AfD, already distancing itself from the constitution, is now gaining significant influence. One example of this is the right-wing extremist meeting in Potsdam last December, where the "remigration" of millions of people was discussed, and influential AfD functionaries were present.
The state associations of the party are considered right-wing extremist by the constitutional protection in both Thuringia and Saxony. The AfD aims for "a fundamental system change," as stated by the former president of the Federal Constitutional Court, Andreas Voßkuhle. In plain terms, the democracies of the two states face an immense risk with the AfD's election success.
Power Position of the State Parliament Presidency
The AfD has not obtained an absolute majority in any of the states. As all factions in the state parliaments refuse to form a government with the right-wingers, the strengthened opposition position of the AfD is the most likely scenario in Erfurt and Dresden. However, this does not mean the AfD cannot harm democratic institutions, as Marie Müller-Elmau explained to ntv.de before the state elections.
The lawyer is part of the "Thuringia Project" under the leadership of constitutional lawyer Maximilian Steinbeis. The researchers investigated the question of what would happen to the rule of law if an authoritarian-populist party like the AfD gained power. The outcome: The party can hinder democratic processes in the state, even without government participation, for its own interests.
For instance, the chances of the AfD, as the strongest force in Thuringia, are good to appoint the new state parliament president. The state parliament president leads parliamentary sessions, including the one in which the minister president is elected. However, the election in Thuringia has historically been innately challenging. In 2020, it took three rounds of voting. The danger lies in the fact that, according to the state constitution, whoever gets "the most" votes wins in the third round. Whether an absolute or only a simple majority is required is open to interpretation. Whose decision will it be in the event of uncertainty? The possibly AF-appointed state parliament president.
Paraphrased Text (English to English):
Against this backdrop, Steinbeis paints the following picture: If Thuringia's AF leader Björn Höcke runs in the third round and the Left and CDU cannot agree on an alternative candidate, the president of the state parliament could decide that Höcke has been elected minister president solely with the votes of the AF.
However, it's not just the post of state parliament president. In Thuringia, the AF is on track to win a third of the seats, granting it a veto power. With this tool, their power increases significantly. The AF can now prevent a two-thirds majority in the state parliament, giving the right-wingers in Erfurt the chance to halt significant democratic processes massively. This includes the amendment of state constitutions or the removal of the state parliament president. A vicious cycle.
A similar scenario would have initially threatened in Saxony. According to preliminary results, the AF also held a veto power in Dresden. However, the state election committee recently rectified the results: The right-wingers possess one seat less than initially thought. Therefore, the party in Saxony also does not hold a veto power.
With the veto power as a tool, the right-wingers possess various attack points. A particularly apparent one is the state constitutional court. The "Thuringia Project" even labels it an exposed flank. After all, constitutional judges are appointed with two-thirds of the votes in the state parliament. The AF could now prevent this appointment, jeopardizing the functionality of that court, which aims to ensure the state's adherence to fundamental rights.
Chaos through veto power
The fact that the AF is not averse to such blockades is evident from a case in 2017. According to Thuringia's state constitution, each parliamentary group must at least be represented by one person in the judicial selection committee. At that time, the Thuringian right-wingers refused to nominate their committee member temporarily, aiming to paralyze the committee, as reported by employees of the "Thuringia Project" in the legal journal.
The paralysis of such crucial democratic decisions would primarily have one consequence: chaos in the state government. This would once again serve the narrative, "the government cannot get anything done, the system is failing, and the AF is the only party that can truly lead the people." Mistrust in the government grows further, the AF benefits – and can continue to expand its support.
The scenarios illustrate: Despite being a significant opposition, the AfD possesses potent tools to undermine democracy's foundations. Although this configuration appears most likely at the moment, the AfD's opposition stance isn't immutable. For instance, the Progressive Alliance for Justice and Social Welfare (BSW), which also secured double-digit poll results, might aid the AfD in securing a share in the government - though Wagenknecht has so far declined this for Thuringia.
Eroding democracy within a single political term
Examining Poland and Hungary reveals what assuming power might imply. Upon seizing power by an authoritarian-populist party, democratic norms start to deteriorate gradually. Progressively, the separation of powers and opposition are undermined or eliminated.
It has been foreseen by constitutional scholar Steinbeis that this could happen at the federal level in Germany. Steinbeis, the founder of Verfassungsblogs, claims that the rule of law is not as robust as commonly believed. If anti-democrats were to attain the majority in the Bundestag, Steinbeis argues, it would only take a single legislative period "to bring the Basic Law to its knees". Initially, the Federal Constitutional Court would likely be the primary target. Steinbeis describes it as a particularly vulnerable control mechanism. If it fails, the path would be cleared for an authoritarian-populist party. The Thuringia project's outcomes underscore similar dangers even at the state level. The state constitution, like the Basic Law, is not protected against abuse of power by an authoritarian-populist party. To eliminate unwanted checks, the judiciary would probably also be targeted at the state level, as explained by Beck.
An influential instrument is personnel changes, emphasized Müller-Elmau and Beck. Should the AfD gain governmental responsibility and hence ministerial positions, it could also fill important political civil servant positions - without providing reasons. While this replacement of trusted individuals in government after a change of government is not uncommon, anti-democrats could abuse the position. For instance, if the interior minister ordered the police president to crack down harder on activist groups or even opposing alliances, the police president could redistribute personnel or funds to the relevant department. Similar events could occur in the Office for the Protection of the Constitution. "Then, Nazis would no longer be monitored, but left-wingers would be targeted more intensely," Beck pointed out. Höcke is undoubtedly aware of this power factor. In his plans for an AfD-led government, the dismissal of the Office for the Protection of the Constitution's president is at the top of the list.
Both the federal and state constitutions in a global context have contemporary constitutions serving as a sort of democracy shield and intended to withstand attacks on democratic institutions. Principles such as the prohibition of discrimination, the proportionality of justice and administration, and the separation of powers are deeply embedded in the state constitutions. If right-wing ministers or civil servants attempted to even scrape these constitutional principles of the rule of law, the constitutional uproar would likely be immense.
The Achilles' heel in the security system, explained Müller-Elmau, lies in the fact that current authoritarian-populist parties do not aim to confront the constitution with brute force. Rather, they wish to use it to their advantage. "Democracy is hollowed out from within, without the party necessarily having to violate laws," said Müller-Elmau. An example of this is Hungary, where the authoritarian regime of the Fidesz party was established precisely with the help of democratic institutions. The motto is, therefore, "bend rather than break, sneak rather than torchlight procession."
Possible primarily because "the constitution and laws are abstract by nature," said Müller-Elmau. Even that is part of the rule of law: the law does not regulate individual cases. It cannot anticipate all problems that a party might create. "We cannot craft a watertight constitution or a lex AfD," explained Beck. "Then, we would slide into authoritarianism ourselves." This means: the law must be interpreted - it offers room for interpretation and different opinions.**
This could favor right-wing judges or administrative officials. Because proving later that a decision - perhaps about a refugee's residence permit - was not within the broad limits of the law would often be challenging.
Beck also pointed to the appointment procedures of authorities that an authoritarian-populist party could manipulate. While positions must be advertised and the best candidate selected, "the advertisements can be altered so that preferred groups, perhaps their own people, fit the positions better," said Müller-Elmau. Consequently, the state administration could be brought into line relatively easily.
Another tool for an authoritarian-populist party could be the education sector. Here, relatively little is regulated by law. "It would be possible, for example, to eliminate subjects like sex education or restrict political education to seventh-grade content," said Müller-Elmau. Even topics such as visiting a concentration camp could be omitted - all without violating any laws. Lastly, one should not forget the budget. "The authoritarian-populist party could easily ensure that projects promoting democracy no longer receive funding," Höcke has already declared.
The examples demonstrate: numerous tiny screws exist that an authoritarian-populist group could utilize to advance their agenda and solidify their power. Breaking the law isn't essential in most instances. However, if it is necessary, security measures do not necessarily take effect, as Müller-Elmau emphasized. The constitution doesn't function as an inherent safeguard; it requires someone to initiate a lawsuit against the law or the party's actions. "Obviously, the appropriate environment and financial resources are essential for that," Müller-Elmau cautioned.
Prolonged procedures can take several years. Consider the procedures against ex-President Donald Trump in the U.S. due to election interference as an example. "During this time, facts can be fabricated." Beck encapsulated the threat before the elections: "If the AfD manages to secure a place in the next state government, the rule of law could be compromised."
In their final thoughts, the creators of the "Thuringia Project" assert that not every strategy employed by authoritarian-populists can be neutralized through constitutional or legal adjustments. However, there are "opening points" in the state constitution that facilitate the execution of authoritarian-populist tactics. "Ignoring the need to close these openings would be irresponsible," they state. Months prior to the state elections, the lawyers had supplied specific suggestions for action. Regrettably, none of them have been implemented. While the conservative camp is now celebrating with champagne, the state constitution remains unprotected.
In light of the AfD's increased influence, the possibility of a right-wing extremist meeting leader becoming Thuringia's state parliament president is a concern, especially considering the ambiguity in the state constitution regarding the required majority in the third round of voting.
The AfD's veto power in Thuringia poses a significant threat to democratic processes, allowing them to hinder or block significant changes in the state constitution or the removal of the state parliament president.
