In Europe and the US, courts have become the terrain where lost electoral battles are refought. Populist politicians and parties, more and more successful in the polls, find themselves on the defensive in lawsuits that aim to take them out of political and public life because of their misdeeds. Sometimes it works, as in the case of Marine Le Pen’s condemnation for misusing European funds. Sometimes it fails miserably, as in the case of Donald Trump, whose near absolute immunity was affirmed by the Supreme Court.
Either way, the issue in such cases is fairly straightforward: your local far-right lunatic is or is not guilty of breaking the law. Of course, there are political questions about the abuse of courts or the facile transformation of politicians into victims and martyrs, but the matter is ultimately one of legality. It gets thornier, however, when we turn to legal consequences based on political opinions. Can and should far-right politicians and parties be banned simply because they are far-right?
While Germans of all political shades fret over banning the Alternative for Germany (AfD), Romania has taken the lead and decided that yes—they can and they should. The Romanian Constitutional Court (CCR) annulled the December presidential elections won by a far-right dark horse candidate, causing an international commotion. Now that the initial winner, Călin Georgescu, has also been banned from running in the elections that will be re-run in May, we are witnessing a natural experiment that will answer a burning question: does banning a popular far-right politician work?
Judiciary militant democracy
To answer this question, we must first figure out what “working” means. The most grandiose interpretation is the protection of democracy. Georgescu, an ultranationalist, mystical fascist who ran an intransparent campaign allegedly financed by Russian money, is, undoubtedly, a threat to democracy. But is a court decision against him actually more democratic?
By engaging in “militant democracy,” the CCR chose to invalidate the votes of millions of Romanians who had already expressed their wish to have Georgescu as their president. That might indeed be justified if there was a clear case of fraud or external interference, but the decision was muddled at best. Allegations of external financing were vague, and the technical legality of the CCR taking ruling over the validity of the elections in the way it did is dubious. Nevertheless, this is still a question of facts and jurisprudence. What is more worrying is that the Court went beyond that and started judging politics as well.
The CCR had already started its political rulings in October 2024, when it banned Romanian MEP Diana Șoșoacă from running for president due to her anti-constitutional opinions. More specifically, according to the Court’s ruling, Șoșoacă’s “intentions to remove Romania from NATO and from the EU (RoExit)” were contrary to the letter and the spirit of the Constitution.
That we should not want Șoșoacă as president is made obvious by her reaction to the ban, in which she blamed Jews and Khazars. Nevertheless, the decision proved highly controversial, including among other politicians who vied for the presidency. Even if none of them would describe themselves as “pro-Russian,” certainly not to the explicit extent to which Șoșoacă has, the enshrinement of some constitutional issues as unquestionable struck many as a step too far.
It was, however, only the first step. Georgescu’s attempt to run again in the May elections was first refused by Romania’s Central Electoral Bureau (BEC), a decision then upheld by the CCR. Both rulings were justified based on the previous CCR decisions that annulled the elections and banned Șoșoacă. As the CCR had already established its capacity to ban candidates on political grounds, and as it had also already established Georgescu’s political misdeeds, the Court declared it obvious that he could not run for president (again).
The thicket of self-referential reasonings becomes difficult to follow at this point, but the CCR’s decision comes down to a simple line of thought. Georgescu, it had found in December, ran his campaign with the help of unnamed external (Russian) interferences – an allegation that is, to repeat, yet unproven. This shows that he does not respect constitutional democratic values and therefore does not fulfill the basic requirements for becoming Romanian President. This then allows BEC to disqualify him from participating in the 2025 elections due to the precedent set by the Șoșoacă decision.
This decision then is also, at best, muddled. The passing of the ball from the CCR to the BEC and back makes for an opaque institutional setting in which there is little accountability for momentous decisions. Perhaps even more worrying is the CCR’s overreach. As neither Georgescu nor Șoșoacă fell short of any of the formal requirements for the candidacy, the CCR took it upon itself to assess their political opinions, which they found to be contrary to Romania’s constitutional values even if they had not yet manifested in the form of any illegal act condemned by a court of law.
Now, it might make sense that candidates with fundamentally anti-democratic intentions, such as banning categories of citizens from voting, may not run. But the CCR went way beyond that, referring to the constitutional values of Romania’s orientation towards Europe and NATO and framing the elections’ stakes as a geopolitical choice. By using Russia as a foil and a scarecrow, the CCR virtually ruled that questioning the geopolitical status quo disqualifies you from being the country’s president. Democracy was strengthened by situating some issues outside of what can be legitimately debated and changed.
The far right is everywhere
Perhaps, however, the CCR’s ban worked in a different sense, and it successfully cut short the growth of the far right. It is true that the ban was followed by some infighting in the sovereigntist camp, infighting that still continues. It is also true that the reaction to Georgescu’s ban was violent, but ultimately minor, showing at least that the far-right’s electoral success cannot be transformed into an organized social basis. Not yet, at least.
But none of this means that the coming elections will not be won by someone with similar views. The leading sovereigntist politician before Georgescu’s meteoric apparition, George Simion, is still allowed to run and leading in all the polls. Even if Simion loses the election’s second round, the other choices are almost as abysmal. As we know from Germany, far-right success causes the center to imitate and follow, not to resist and move toward the left.
All other candidates who seem to stand a chance are newcomers who have not run in the annulled elections. That does not mean they are in any way breaths of fresh air in Romanian politics. Although the election is run on debates about who is and is not against the “system,” all candidates are deeply embedded in Romanian political and financial networks.
One of them is Victor Ponta, a former Prime Minister who resigned after a nightclub fire that ultimately killed 64 caused massive protests. Ponta chose to make his political comeback on the unsubtle platform: “Romania first.” His self-presentation as a sovereigntist alternative to Simion, however, suffered by his inexplicable recent admission that, as Prime Minister, he accepted the flooding of several Romanian villages on the Danube in order to save Belgrade, a deal that brought him honorary Serbian citizenship.
Another favorite is Crin Antonescu, a prominent politician in the early 2010s who has been lying low for the last 10 years. He made a comeback after Georgescu shook up the Romanian political scene and is the common candidate of the Social Democrats and the Liberals, the two largest parties of Romania, and also the biggest losers of the annulled elections. Both old and new, Antonescu stands a chance, but his win would certainly not be a loss for nationalists. His campaign banks on national identity and moral majorities, coming out strongly against LGBT rights and for traditional values, and explicitly taking Donald Trump as a positive model.
The last strong contender is Nicușor Dan, currently Mayor of Bucharest for the second consecutive term. Dan is the closest this race comes to a (liberal) left-wing candidate. He is one of the founders of the Save Romanian Union (USR), which originated in an anti-corruption activist group. But anti-corruption campaigns have never been critical of neoliberal capitalism in Romania, and both Dan and USR have since shed all traces of liberal progressivism they might have espoused.
Dan left USR when the party still stood for tolerance and individual rights because its members voted to boycott a referendum aimed at introducing a definition of marriage as between a man and a woman in the Romanian Constitution. This was just the highlight of a lifelong series of anti-LGBTQ declarations and measures, which he still embraces as a presidential candidate.
His controversial exit from the party did not stop him from seeking and accepting USR’s endorsement for the May election, in a coup against the party’s initial candidate, Elena Lasconi. Lasconi was the runner-up in the December elections but now barely registers on the polls, so it might make sense for USR to jump ship. But the BEC has already announced that the mid-campaign change is not legal, so the end result is simply more chaos. Together with his refusal to make known the identity of his most generous campaign donors, Dan’s politicking shows that even the most anti-system candidates are, at best, a conservative opportunist.
As one Romanian commentator wrote, the election is now just a “struggle between two forms of self-colonization.” Not only does the center cling onto a local variety of neoliberal Europeanism, but the far-right sovereigntists are part of a European, even global movement, with connections and models throughout the Western world. This intra-elite competition elides the needs of the working class, the needs of the poor in one of Europe’s most unequal countries. It tries to win their votes and loyalty only through scapegoating, conservatism, and crass nationalism. Rather than mitigating the rightward shift, the CCR’s ban was just a move within the political games that are accelerating it.
Who is an extremist?
But what if it had worked? What if Georgescu’s ban was the end of Romanian nationalism? Or what if, in another time and another place, another court banning another far-right candidate might actually stop their ascendancy?
Some positive examples of legal action against the far right do exist. It is, after all, an absolute good that someone doing a Nazi salute can go to prison in Germany. It is also an absolute good that the glorification of the most important Romanian interwar fascist movement, the Legion of the Archangel Michael, is similarly illegal. It would be even better if this was actually enforced. These concessions won from the state, however, are neither neutral instruments nor a political strategy.
Just look at what courts are doing right now. In the US, they are allowing the deportation of anti-genocide activists. In Germany, they might do the same. In states that are founded on capitalism and colonialism, courts and laws are bloody instruments for the protection of capitalist and colonialist interests.
Trying to redirect these instruments and make them work against the far right might be efficient if the conditions allow it – examples like US desegregation do exist. But the Romanian case is illustrative of why this strategy is not only inefficient but also self-defeating. Șoșoacă and Georgescu were banned from running for president because of their anti-EU, anti-NATO politics. The exact same criteria could be used to ban a radical socialist candidate.If the courts can decide that “extremist” political opinions threatening the status quo exclude one from the democratic process, then those decisions will inevitably also come against those who see the status quo as unequal, as unfair, as criminal. In the eyes of the law, the left and the right are both disruptive and illegitimate. Banning the far right can be a legislative victory. But if it is not accompanied by social and political victories, it only strengthens the force that will soon come down against the left.
