There was chaos last week in the parliament in Erfurt, in the eastern German state of Thuringia, where the Alternative for Germany (AfD) became the biggest group in the state parliament following its election victory in early September.

Last Thursday, AfD politician Jürgen Treutler, by virtue of being the parliament's oldest member at 73, was entitled to chair the first session of the new legislative period. Treutler performed this duty by refusing to allow motions to be passed and votes to be taken, essentially blocking the center-right Christian Democrats (CDU) and other parties from nominating a candidate for the speaker's job.

The CDU objected to this performance at the Thuringian Constitutional Court and was successful. When the session resumed two days later, CDU politician Thadäus König was elected as the new state parliament president.

Now that parliament is able to function once again, it is debating how to deal with the AfD in the coming term. The Office for the Protection of the Constitution in Thuringia, which tracks domestic extremist movements in Germany, classified the party as "right-wing extremist" in 2021.

Georg Maier, leader of the Thuringian Social Democrats and still acting interior minister, spoke out on Thursday in favor of proceedings before the Federal Constitutional Court to ban the AfD. 

"Today's events in the Thuringian state parliament have shown that the AfD is aggressively and combatively taking action against parliamentarism," he said on the social media platform X, formerly Twitter. "I think that this means the preconditions for a ban have been met."

Article 21 of the German constitution, the Basic Law, states: "Parties that, by reason of their aims or the behavior of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional."

Earlier attempt to ban far-right NPD failed

It's up to the Federal Constitutional Court to decide whether a political party can be banned. The federal government, the Bundestag, and the chamber of the 16 federal states, the Bundesrat, are entitled to file a petition.

But the bar is high, and the precedents do not augur well for such a move. The last attempt to ban the far-right National Democratic Party of Germany (NPD), which has since renamed itself Die Heimat, failed in 2017.

In the verdict on that case, the court ruled that the former NPD was indeed unconstitutional, but also politically insignificant. "In the more than five decades of its existence, the NPD has not managed to be permanently represented in a state parliament," it said.

In addition, the other parties in the federal and state parliaments have so far been unwilling to form coalitions or even to cooperate with the NPD on specific issues, the court stated at the time.

Taking this ruling as a yardstick for a potential AfD ban, a new picture emerges: Unlike the old NPD, the AfD is already well-established as a political force both in the Bundestag and in 14 of Germany's 16 state parliaments. But, as with the NPD, no other party has so far been willing to enter into a coalition with the AfD, so it has no realistic prospect of being part of a government.

The debate over a ban has flared up again because of the scandal following the election in Thuringia. CDU Bundestag member Marco Wanderwitz is now campaigning across party lines for a joint motion that the Bundestag vote on a ban. At least 5% of lawmakers would have to support his initiative, or 37 out of 733. Wanderwitz told the daily newspaper taz in June that they had reached that number.

AfD's 'right-wing extremist' classification does not guarantee ban

Wanderwitz said they were still waiting for the written opinion of the Higher Administrative Court in North Rhine-Westphalia, which in May had confirmed the AfD's classification as a suspected right-wing extremist group by the Office of the Protection of the Constitution, the BfV.

"If the reasoning for the judgment is made available, we will take a close look and then submit our updated and well-founded application for a ban," he told taz. In the vote that would then be due in the Bundestag, a majority would have to vote in favor of filing an application to ban the AfD. The Federal Constitutional Court would then have to decide.

Experts have different views on the chances of success. Hendrik Cremer of the German Institute for Human Rights in Berlin believes a ban is urgently needed and could be successful. "If you look at the AfD closely, I think you have to come to the conclusion that the conditions for a ban are met," he told DW in May, adding that he finds it difficult to understand why some still express any doubts.

Azim Semizoglu, a constitutional law expert at the University of Leipzig, is more skeptical. In his view, the classification of the AfD as "definitely right-wing extremist" by the BfV does not automatically guarantee a successful ban, he previously told DW.

'Assessment is not a political one,' but 'a legal one'

That's only one piece of evidence among many, Semizoglu argued. "You can't conclude from it that if a party is classified as definitely right-wing extremist, it is also unconstitutional in the sense of the Basic Law," he said. There are different standards of proof that must be applied, he added.

SPD co-chairman Lars Klingbeil takes a similar view. "The assessment is not a political one, but first of all a legal one," he told the German news agency dpa. Klingbeil pointed out that the BfV is responsible for collecting material on the AfD. If experts come to the conclusion that the AfD endangers the German state and society, "then we have to become politically active."

Josef Schuster, president of the Central Council of Jews in Germany, has also been taking part in the recurring discussion about banning the AfD. In the run-up to the state election in Brandenburg on September 22, he spoke out against the party in an interview with the daily Tagesspiegel.

"The people who vote for the AfD today are not going to just disappear — nor can we ignore them," he said, adding that he believes a ban isn't a good way to dissuade AfD voters from their ideology.

This article was originally written in German.

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