Outlawing the AfD: a ban that keeps not arriving

"Das Parteiverbot stellt … die schärfste und überdies zweischneidige Waffe des demokratischen Rechtsstaats gegen seine organisierten Feinde dar."

Federal Constitutional Court, NPD ruling of 17 January 2017

The question is suddenly legal again

On 6 September 2026 the AfD won a record result in Saxony-Anhalt: just under 44 percent, more than double its 2021 share and the highest a party has ever scored in that state's Landtag elections, with the strongest position in every age group (tagesschau analysis, 7 September 2026). On 21 September it narrowly came first in Mecklenburg-Western Pomerania too, breaking the SPD's hold there that dated to 1998, and the incumbent governments in both eastern states lost their majorities (tagesschau, Landtagswahl Mecklenburg-Vorpommern 2026, analyses). Two weeks later the CDU leader of North Rhine-Westphalia, Hendrik Wüst, proposed a Bund-Länder working group to "carefully, professionally and seriously" examine how the constitution deals with a party that at least in individual states pursues aims hostile to the constitution (DIE ZEIT/dpa, 8 September 2026). The question of whether Germany can simply outlaw the AfD is being asked in earnest again.

The short answer is: the mechanism exists, the evidence is being assembled, and the votes are not there. Each of those three statements deserves unpacking.

Only one court can do it

A political party in Germany can be outlawed by one body only: the Federal Constitutional Court in Karlsruhe, on application by the federal government, the Bundestag or the Bundesrat; in the two chambers a simple majority suffices to request it (Grundgesetz, Art. 21 para. 2 and 4; tagesschau FAQ, 25 June 2026). The grounds are narrow. A party that "seek[s], by its aims or by the behaviour of its supporters, to prejudice or destroy the free democratic basic order or to endanger the existence of the Federal Republic" is unconstitutional, and the court alone decides.

If the court declares a party unconstitutional, it is dissolved, its assets are seized, its parliamentarians lose their seats, and successor organisations are banned (tagesschau FAQ, 25 June 2026). Since a 2017 constitutional change there is also a softer sanction that does not touch a party's existence: the court can strip a party of state financing and tax privileges (Grundgesetz, Art. 21 para. 3). That clause exists precisely because of how the court treated the previous test case.

75 years, two bans

Since 1949 exactly two parties have been banned: the Socialist Reich Party in 1952 and the Communist Party of Germany in 1956. Both were fringe parties, and both verdicts came in the first decade of the republic (BVerfGE 2, 1 and BVerfGE 5, 85). Every attempt since has failed. In 2003 the court's second senate ended the first NPD ban proceedings on procedural grounds: three of seven judges held that state informants planted in the party's leadership made the case irreparably tainted, and the proceedings were stopped without the merits ever being examined (BVerfG press release, 18 March 2003). The second NPD attempt, filed in December 2013, produced the modern standard: in January 2017 the court ruled the NPD unconstitutional in substance — it found the party's ethnic "Volksgemeinschaft" concept violated human dignity and the democracy principle — but declined to dissolve it, because the party was too insignificant to have any realistic prospect of implementing its aims (BVerfG press release No. 4/2017). Banning a party, the court held, requires both a proven intention against the free democratic basic order and a real chance of acting on it. A party that cannot win cannot be banned for being hateful.

This gives the AfD question its peculiar shape. On legal relevance, the AfD easily clears the bar that sank the NPD. It took about a fifth of the vote in the February 2025 federal election and 152 seats, doubling its 2021 result and becoming the second-largest faction (tagesschau, 27 February 2025). In mid-2026 it led the national polling at 27 percent, ahead of both governing parties (tagesschau, 25 June 2026), and it has since recorded the results above. The "too insignificant to matter" escape route of 2017 is closed.

The hard hurdle: the party as such

The genuinely hard question is whether the party as a whole — not its most radical wing — can be shown to aim at dismantling the free democratic basic order. Here the record cuts both ways.

The Federal Office for the Protection of the Constitution observes the federal party as a case of suspected right-wing extremism ("Verdachtsfall"), a classification the courts have upheld through two instances and which became final in May 2025 (BVerwG press release No. 54/2025). In May 2025 the office went further and classified the whole federal party as "confirmed right-wing extremist", after a three-year, more than 1,000-page review (tagesschau, 2–8 May 2025). The AfD sued, and the office at once suspended its own upgrade. As of mid-2026 the federal classification had been stopped in interim proceedings, with the main case still pending in Cologne; five state branches (Saxony, Thuringia, Saxony-Anhalt, Brandenburg, Lower Saxony) remain classified as confirmed right-wing extremist (tagesschau, 25 June 2026). A ban application would rest heavily on that contested classification, on openly recorded conduct in parliaments and at party events, and on a mountain of public statements, not on a formal finding that the federal party is a confirmed extremist organisation — because that finding is not yet legally secure.

The party has also spent years tidying its own edges. It dissolved the "Flügel" grouping around Björn Höcke and, at a 2024 party congress, decided to replace the youth organisation "Junge Alternative", which is classified as confirmed right-wing extremist, with a new structure to give the federal leadership more control over it (tagesschau FAQ, 30 January 2025). Whether that is genuine moderation or paper compliance is the kind of question the whole case would turn on.

The legal standard itself has been mangled in public debate. Several politicians, the chancellor among them, have implied that banning the AfD would require it to act "violently and aggressively" against the state. The German Institute for Human Rights (DIMR), a Bundestag-financed body, calls that a misreading of the 2017 NPD ruling: the court requires an "actively combative, aggressive attitude" towards the free democratic basic order — a disposition, not a set of violent acts — and, decisive for a party that keeps winning elections, it cannot matter whether the state is meant to be disabled by coup or by the ballot box (Spiegel, 27 May 2025).

The two camps among constitutional lawyers disagree sharply. The rights-oriented Gesellschaft für Freiheitsrechte, which in June 2026 published a 13-month expert report based on 2.9 million social-media posts, 77,000 parliamentary documents and 55,000 press releases, concludes the AfD operates unconstitutionally — an "ethnocultural" concept of the people that splits Germans into first- and second-class citizens, plus systematic threats to prosecute political opponents — and says a ban application "would probably succeed" (Gesellschaft für Freiheitsrechte, June 2026; tagesschau, 25 June 2026). Against that, constitutional scholars such as Josef Franz Lindner have argued that the case is only tenable if it contains concrete proof that the party as a whole works deliberately toward abolishing foundational principles of the constitution, and that on the current record "a ban is probably hopeless" (Junge Freiheit, quoting Lindner, 14 May 2025). A party's freedom to be repugnant, the counter-argument runs, is part of the free democratic basic order it is accused of attacking.

The political bottleneck is upstream of the law

Even a watertight legal case can be blocked before it reaches Karlsruhe, and the current blockade is the more important one. In January 2025 the Bundestag gave the idea a first reading; two motions — one from more than 100 MPs including the CDU's Marco Wanderwitz, one from the Greens — were referred to committee, found no majority, and expired with the old parliament (tagesschau, 30 January 2025; 27 February 2025). In the new Bundestag the governing parties are unenthusiastic. Chancellor Friedrich Merz has called himself "very sceptical", noting that the burden of proving an "aggressive, combative" hostility to the constitution rests entirely on the state and that ban procedures "smell too much of eliminating political competitors" (tagesschau, 15 May 2025). Interior Minister Alexander Dobrindt said in 2025 that the security service's collected evidence is not enough for a ban procedure (tagesschau, 25 June 2026). Practising lawyers beg to differ. In an open letter of 27 January 2025, 619 jurists — practising lawyers and academics — told the Bundestag and the government that a ban procedure "hat Aussicht auf Erfolg", that the claim that evidence is lacking "can no longer be seriously maintained", that the evidence base is "overwhelming", and that the applicants' role is a gatekeeper's: their task is to enable the review by the Federal Constitutional Court, not to pre-judge it (RAV open letter, 27 January 2025). The step the signatories warned against — further preliminary investigations that merely delay — is exactly the Bund-Länder working group that Wüst and the SPD now propose. CSU leader Markus Söder is flatly against, warning a ban would be legally disputed, hard to enforce and would end by making a martyr of the party (tagesschau, 15 May 2025).

The SPD has a party-convention resolution demanding a Bund-Länder working group to collect evidence, but by June 2026 little had happened, in part to avoid offending the coalition partner. The Greens and the Left want the case brought, and a cross-party group including the CDU's Elisabeth Winkelmeier-Becker argues there is every reason to let the court examine it (tagesschau, 25 June 2026). The one institution that publicly states the legal preconditions are met is the DIMR — in its 2023 analysis and again in a January 2025 press release — even as it stops short of calling for an application, urging instead that the three competent organs keep their evidence ready (DIMR, 22 January 2025; DIMR, June 2023). After the September 2026 elections, Wüst added his weight to a working group — but explicitly not to a ban, which he called "the last path" to be taken only to protect the constitution, warning against "hasty steps" (DIE ZEIT/dpa, 8 September 2026). The CDU's parliamentary executive Hendrik Hoppenstedt calls a ban "no solution" (DIE ZEIT/dpa, 8 September 2026). No state has moved to file via the Bundesrat, which on paper would be the least hostage to the governing coalition.

Time, money and the middle path

Timing matters more than it sounds. The second NPD case ran more than three years from filing to verdict; standards are now settled, so an AfD case could be faster, but a court hearing evidence against a party that commands a quarter of the electorate will not be quick (tagesschau FAQ, 30 January 2025). Every month the party keeps its seats, its speaking time and its reform visibility. The AfD also draws heavily on public money — around 12.8 million euros a year in party financing in 2025, and roughly half a billion euros in party and parliamentary funding across the 2025–2029 term (DW, 14 January 2026). That is precisely why the 2017 constitutional amendment matters: it gives Karlsruhe a verdict that does not dissolve the party but ends its public subsidy. Declaring the party unconstitutional and cutting its money is far closer to a plausible outcome than dissolution, and it is what the founders of the current rules designed the softer clause for. Crucially, the funding cut does not even require the potentiality showing that a full ban does, and it can be requested as a subsidiary claim alongside a ban — a combination the DIMR proposed in 2023 (DIMR, June 2023).

One further development could shift everything: if the AfD actually enters government in an eastern state before a verdict — the September 2026 results have made that discussion concrete — the calculus changes again. Banning a party that holds ministries is a category leap, and the court, the applicants and the public would all feel it.

The strongest case for success

Argued at full strength, the case that Germany actually outlaws the AfD runs in four moves.

An application will be filed. After September 2026 the arithmetic changed. The AfD took just under 44 percent in Saxony-Anhalt and first place in Mecklenburg-Western Pomerania; both incumbent governments fell; and the democratic parties in the east face a choice between a legal remedy and watching the party into government. Wüst's Bund-Länder working group is best read as the opening move of a procedure, not a delay — it is what an interior ministry does when it knows a case is coming — and the SPD's party congress had already mandated exactly such a group a year earlier. An application needs only a simple majority, and the federal governing coalition cannot block the Bundesrat from bringing one; no state government currently includes the AfD. On this reading the chance that a competent organ reaches Karlsruhe before the 2029 election is about two in three.

The legal test, read through the court's own precedent, is met. The NPD ruling put one element beyond debate: the core of the free democratic basic order includes the equal dignity of every person in Article 1(1) GG and the non-discrimination guarantee of Article 3(3) GG. The AfD's own programme — a settled "national-ethnic" concept of the people, plans for "remigration", a legislative record in all sixteen state parliaments — attacks that core in writing, in the party's own documents. The court requires an "actively combative, aggressive attitude", not violence, and it is settled that it cannot matter whether the order is to be undone "by coup or by elections" (DIMR reading, June 2023). The material is public, contemporaneous and enormous: 2.9 million social-media posts, 77,000 parliamentary documents, 55,000 press releases, a documented security service review, five state branches classified as confirmed right-wing extremist (Gesellschaft für Freiheitsrechte, June 2026; tagesschau, 25 June 2026). And the relevance requirement — the single element that saved the NPD — is met to a degree no previous case approached: this is not a marginal party; dissolution would remove the party a quarter of the electorate votes for.

The evidentiary objection collapses on inspection. The federal party's classification as a case of suspicion survived two instances and became final in May 2025 — a court has already held that concrete indications of extremism in the whole federal party pass legal muster (BVerwG, 20 May 2025). The interim ruling against the security service's 2025 upgrade was a procedural stop, not a merits finding, and the constitutional court is in any event not bound by the service's categories: it takes its own evidence, which here is open, dated and citable. The 619-jurist letter put the rest plainly: "the claim that evidence is lacking kann inzwischen nicht mehr seriös vertreten werden" (RAV, 27 January 2025).

The court will follow its own law, and its law leaves one destination. The Federal Constitutional Court is the least exposed organ of the German state: judges sit for twelve years, are re-elected by no one, and serve no party. It has already found a party unconstitutional, in 2017. Once it finds both the unconstitutional aim and the relevance, dissolution is not a discretionary extra but the consequence written into Article 21(2); the softer funding cut of Article 21(3) is sized for cases where relevance fails, which this is not. Politicians' alarm about banning a party with a quarter of the electorate is a political fact, not a legal element the court may respect; the relevance doctrine exists precisely to catch relevant parties, and the court has said that popularity cannot immunise a party against the constitution.

On the strongest reading: conditional on an application, about seven in ten that the court dissolves the party, and above nine in ten that it lands at least a formal finding of unconstitutionality or the loss of state financing. The burden of persuasion sits with the party, and the likeliest point of failure is upstream, in the decision to file.

The strongest case against success

Argued at full strength in the other direction, the same record yields the opposite conclusion: the attempt fails, whether before or after an application.

No application is ever filed. The decisive votes sit with a governing Union whose leader, Interior Minister and Bavarian party leader all oppose the course (tagesschau, 15 May 2025; 25 June 2026). Their objection is not legal but electorally rational: a procedure would put the CDU in a multi-year war against a quarter of the electorate it must one day win back, hand the AfD a four-year martyrdom platform, and push alienated voters out of the party system altogether. Wüst's working group is at least as plausibly a face-saving substitute as a first step: a government that wanted a Karlsruhe case does not need to "examine", for another year, what its own security service and 619 jurists already state. The Greens, the Left and the legal associations cannot force the matter alone — a Bundestag application needs a majority the governing parties control, and not a single minister-president has moved in the Bundesrat. And the calendar cuts against the applicants: if the AfD enters an eastern state government before any filing — the September 2026 results have made that concrete — the same governments that would have to apply will instead be cohabiting ministries with the party, and an unfiled application becomes unfillable. Time runs for the party, not for its opponents.

If filed, the merits are genuinely hard. The court must find that the federal party as a whole aims to abolish the free democratic basic order — not a wing, not a region, not its loudest voices. The federal leadership has expelled members, dissolved the "Flügel" under internal pressure in 2020, and replaced the youth organisation precisely to tighten control; a party's own lawyers drafted the programme to stay the right side of the line, and a court that must be persuaded beyond reasonable doubt of the party's true aims faces years of competing expert reports about whether a given phrase is code or mere rhetoric. The state's own position marks the federal party only as a case of suspicion — the category reserved for "indications not yet confirmed" — and the upgrade to "confirmed" already had to be suspended in interim proceedings (tagesschau, 25 June 2026). The "actively combative, aggressive attitude" element cuts against the applicants: the AfD contests elections, sits on committees, obeys court orders and disavows violence — it operates entirely inside the institutions, and a party that can be defeated by the electorate can be left to the electorate, which is precisely why the court built the relevance and attitude requirements in the first place. An open letter signed by 619 advocates asserts that the case is made; it does not lower the constitutional standard of persuasion.

The precedent is the strongest card in this hand. In 75 years the court has dissolved exactly two parties, both small and both in the 1950s: the SRP after barely 11 percent in a single state, the KPD after a poor 5 percent nationally. It has never once exercised the instrument against a party of national standing; in 2017 it used the oral-proceedings rule, and in 2003 the exit from the NPD case, to avoid the decision. It has called the ban the "sharpest and moreover double-edged weapon" of the democratic state under the rule of law — the language of extreme reluctance. To dissolve a party polling second nationally would disenfranchise millions of lawful voters on a single judgment day, hand international platforms the claim that Germany outlaws lawful opposition, and risk producing the radicalisation the measure is meant to prevent. A court that has spent three-quarters of a century declining this step against every crisis party — communists, radicals, the NPD in both attempts — is, on this reading, very unlikely to choose this year to break its own record, whatever the signed briefs say.

On the strongest reading in this direction: the chance of an application is below one in three; if one is filed, the chance of a full ban is between one in five and one in four; and the attempt is likeliest to die on the political calendar, or, if it reaches judgment, to end the way every previous case has ended — not a ban, not like this.

Bottom line

Both cases, argued at full strength, bracket the answer, and I will commit to the one that follows from weighing them. The pro case is stronger on the law: the doctrine exists, the relevance test is met as never before, the evidence is public and enormous. The con case is stronger on the institution: the court has never dissolved a party of consequence, has built its doctrine partly to avoid that step, and sits behind a political gate that may never open. My weighed estimate is this. The chance that a competent organ files before the 2029 election: roughly 40 percent — the pro case's "someone must act" lost against the Union's control of the votes and a calendar that may run the AfD into eastern state governments first. Given a well-prepared application, the chance that the court dissolves the party: roughly 50 percent, a coin flip, the pro case's doctrinal machinery pulling above it and the con case's institutional record pulling below. Given an application, the chance of at least a substantial sanction — a formal finding of unconstitutionality or the loss of state financing under Article 21(3): about two-thirds. Put together, the outright answer to "will Germany outlaw the AfD" before the end of the decade is a minority probability, roughly one in five. But the question is better read as "if a real attempt is made, does it succeed", and on that reading the record is close to fair odds, leaning if anything to the applicants. The strongest single reason to doubt the enterprise is neither the law nor the evidence but the political will to start it; the strongest single reason to believe it is that the party's own programme is the one exhibit the applicants would not have to build.

Sources

Law and courts

Institutional opinion

Reporting

Advocacy and opinion (treated accordingly)

Given a well-prepared application, roughly even money on a full ban and two-thirds on some substantial sanction; but the strongest obstacle is not the law, it is the will to file.