Banning the Right Wing Party AfD

The German security agency "Verfassungsschutz" ir responsible for surveilling enemies of the institutions of the country andour constitution. It has recently released a 1000-page paper on the party AfD, that describes it as right extremist and a danger to our democracy. The proceeding is currently pending, but this case has brought up the topic of banning the party again.

The AfD is currently the second biggest parliamentary faction with around 1/5th of the votes in the last elections. It's a very complicated process to ban a party (as it should be in a democracy), therefore many politicians are hesitant. But let's anyway find out about the legal circumstances and consequences.

Legal Framework

According to Article 21(2) of the German Constitutional Law (Grundgesetz), political parties can be declared unconstitutional if their aims or actions seek to undermine or abolish the free democratic basic order. In such cases, the Federal Constitutional Court (Bundesverfassungsgericht) has the authority to formally ban the party.

In 2023, the Federal Election Law (BWahlG) was amended to address the parliamentary consequences of such a ban. Under § 46 (1a) BWahlG, any Bundestag members who belonged to the banned party at any point between the filing of the application for prohibition and the final verdict would automatically lose their parliamentary mandate. The key point is that even short-term membership in this window results in the loss of the seat, regardless of later party resignation.

Impact on the Bundestag Composition

Assuming the AfD (currently with 152 seats) is banned under this process:

• All 152 AfD seats would be forfeited unless the elected members of the faction leave the party BEFORE the process of banning (i.e. the filing of the case) is starting.
• There would be no replacement via backup lists, as the party would no longer exist legally.
• The Bundestag would permanently shrink from 630 to 478 seats until the next official elections.
• This would significantly change the power balance and parliamentary dynamics.

Adjusted seat distributions (assuming no AfD member would remain):

• CDU/CSU: 208 = 43.5%
• SPD: 120 = 25.1%
• Greens: 85 = 17.8%
• Left: 64 = 13.4%
• SSW: 1 = 0.2%

Absolute majority: 240 seats

Two-thirds majority: 319 seats

• The current government coalition (CDU/CSU and SPD) would have 328 seats, which is a comfortable majority and above the two-thirds, which allows for major constitutional changes.
• also CDU/CSU and the Greens would have 293 seats and a majority
• But also a more left side coalition (SPD, Greeens and Left) would have 269 and could become an option in case of conflicts in the current govenmental constellations

Additional Notes on Individual Members of the Banned Party Faction

• Any AfD member who was part of the party during the key procedural period would lose their mandate automatically, without the need for individual parliamentary or legal action.
• Even if a member resigned from the party shortly after the filing of the ban application, they would still lose their seat, as any party affiliation during the critical timeframe suffices for exclusion.
• This reflects a shift from the previously absolute protection of the free mandate (Article 38 GG) to a more restrictive approach in cases of unconstitutional parties, aiming to prevent strategic resignations.
• Of course a ban from prliament would also revoke immunity and therefore allow courts and attorneys to take action against the members.

AfD Members in Public Office

• The ban would also affect any AfD members in public office, including regional parliaments, local councils.
• Also people in public service, like teachers, police officers, judges, etc. would most likely be affected and could/will lose their jobs. How this part will be handled is still unclear though.