The recent global growth of anti-democratic sentiment has renewed the question of when a political party should be barred from the electoral arena. In modern democracies, even explicitly militant ones, constitutional mechanisms for banning political parties are rarely used. The recent decision by the German Federal Constitutional Court (BVerfG) not to ban the National Democratic Party, despite its neo-Nazi platform, is an example of this restraint, with the BVerfG introducing a new, stricter criterion called “potentiality” for the dissolution of a political party under the German Basic Law. This article draws on neo-institutionalism and comparative constitutional law to explore the democratic ramifications of three different European thresholds for banning an anti-democratic political party: the presumptive test previously used by the BVerfG, the new potentiality criterion introduced by the BVerfG, and the European Court of Human Rights’ requirement for the party in question to be an imminent threat before it can be dissolved.
