Beyond Doom and Gloom
If you’re feeling down, resigned, or even depressed following the elections in Thuringia and Saxony, it might help to look at the United States. In two months, a new president will be elected there. Not only could Donald Trump win this election. He could also lose and still become president. This is possible, and it’s likely he’ll at least give it a try, unless he loses by a landslide. The Republicans and their allies have been strategically preparing for this for years under the Orwellian slogan of election integrity. In the swing states that will likely decide the outcome, Republican governments and legislators have passed laws and appointed officials in order to achieve this. It’s not just about voter suppression, gerrymandering, and other such forms of election manipulation (although these are being used on an alarming scale, too). It’s about something even more sinister: derailing the election itself if it delivers the “wrong” result.
This is particularly visible in the hotly contested state of Georgia. Back in 2021, Republicans took control of the election commissions at the county level, removing Black and Democratic members, replacing them with people some of whom have a record of stating their belief that Trump’s defeat in 2020 was fraudulent. When the election takes place on 5 November, these commissions could use even the smallest irregularities as an excuse to delay certifying the results indefinitely. By 11 December at the latest, all election results must be certified for the Electoral College to formally elect the next president on 17 December. What happens if they aren’t? Chaos ensues.
The German perspective on the US presidential election tends to see it as a matter of institutions: rules, procedures, and protocols that are followed to determine the outcome. It’s viewed as a race to a majority in enough states to collect 270 electoral votes. And in normal times, that’s how it works: whoever gets 270 votes becomes president. But these are not normal times, as the events of 6 January 2021 should have made abundantly clear. On that day, Trump called for the attack on the Capitol after he and his supporters realized that their original plan – to overturn their defeat through institutional abuse – had failed because Vice President Mike Pence refused to play along.
Institutional abuse. For months, even years, legions of activists, lawyers, and legal scholars in the US have been meticulously preparing for this. They analyse scenarios and develop counterplans. What happens if, in some Republican-controlled swing states, certain “faithless electors” don’t vote for Kamala Harris, even though she won their state, leaving her short of the required 270 votes? What if Harris and Trump both end up with exactly 269 votes? What if the decision of who becomes President then falls to the state delegations in the House of Representatives, i.e. to the Republican Party? These aren’t wild, hypothetical horror stories. This could genuinely happen. It will happen if the opportunity arises. Right now, countless people are fighting against this eventuality with everything they have, particularly through legal channels. Numerous court cases are being prepared, fought, and often won. There’s an incredible mobilisation underway. Networks are being formed, and people are organising. There’s a fight!
Björn Höcke has now gained a blocking minority in Thuringia. That’s not good. Not at all. It’s seriously bad. His ability to obstruct and exert pressure for political influence has grown immensely, and for some things to improve the resilience of the system, it’s now too late. But it’s not the end of everything. Höcke is not in power, and his opponents still have the means to keep him out of power. In some ways, this has become more challenging, but in others, it has also become easier: His strategy of institutional abuse is now much more visible. And so is the necessity to counter it.
The dismal German faith in institutions is paralysing and discouraging. It feeds the feeling that the total takeover by authoritarian populists is inevitable, merely a matter of time. Supervillain Höcke, the evil mastermind, always knows exactly which institutional buttons to press to win no matter what! We are all doomed! If we surrender to this sense of irredeemable doom, then Björn Höcke has already won.
Every institution can be abused. There is no perfect constitution, as we’ve emphasised time and again in the Thuringia project. The institutions won’t save us. But we can save the institutions. To do that, we need to mobilise, network, and organise. We need to catch up with the authoritarian populists in terms of understanding the potential for institutional abuse. We need to think in scenarios. Not just in Thuringia, as we have been doing in recent months, but in Germany as a whole.
And that’s what we want to do now.
We want to organise civil constitutional protection. Defending the liberal democratic constitution is not something we can, should, or want to leave to the security apparatus alone. Civil society must take up this task.
You’re asking: What can I do now? Here’s the answer. We need your support. Your donations. Project funding is great, but it’s not enough. We need a broad civil society base for our work.
Mobilise, network, organise: Become part of the civil constitutional protection!
Thanks to Anja von Rosenstiel for her valuable input!
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Editor’s Pick
by LOUISE LEHMANN
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The Week on Verfassungsblog
… summarised by LOUISE LEHMANN
No sign of autumn, it’s still summer, the week was hot. Only last Sunday’s election results in two German federal states have overshadowed the exuberant late summer mood:
After elections in the federal states of Thuringia and Saxony, it is more likely than ever that the far-right AfD could participate in government. LUISE QUARITSCH (DE) analyses whether the European Union could use its instruments in case a German federal state were to violate fundamental EU values. In particular, budgetary measures seem suitable and could severely affect a state like Thuringia.
After a long back and forth, politician Sahra Wagenknecht and the party Die Linke parted ways, with Wagenknecht founding her own party. The separation happened some time ago, but the end of the relationship may also have financial repercussions. JAKOB KNAPP and CLARA VEELKEN (DE) investigate whether a city councillor still owes his ex-party contributions that he receives through holding an office.
So, is it happening after all? After the German government decided nine years ago not to turn asylum seekers away at the country’s borders, CDU leader Friedrich Merz is now calling for refusals at the border due to an “emergency” and recently even gave the government an ultimatum to issue a corresponding declaration. But could the “Merz Plan” even be implemented legally? DANIEL THYM (DE) says: The proposals are not illegal from the outset, but they certainly carry legal and political risks.
“Goodbye data retention,” wrote former Federal Justice Minister Sabine Leutheusser-Schnarrenberger for us after the European Court of Justice (ECJ) in 2020 reaffirmed its restrictive case law on the storage and transmission of telecommunications traffic data. JOACHIM HERRMANN (DE) now counters after a more recent ruling and argues: Data retention is an important tool for victim protection.
The new Hungarian Sovereignty Protection Office has unprecedented powers. It already intimidates NGOs, lawyers, and journalists, and it ultimately undermines a free and independent society. FERNANDA G. NICOLA and JASMINE D. CAMERON (EN) call for the European Union and civil society to take action immediately. While the conflict surrounding the Sovereignty Protection Office is about undermining democratic structures, another conflict with Hungary concerns the felling of trees. Hungary used EU funds to build a treetop walkway construction to walk and admire the tree canopies. Yet, it also cut down all the trees around, so the treetop walkway now stands in a desert. KRISZTINA KARSAI (EN) shows why the European Public Prosecutor’s Office has jurisdiction to prosecute regardless of the Hungarian statement on the contrary.
Fast-track Democratic Backsliding is now also occurring in Slovakia. Over the past ten months, the Fico IV government in Slovakia has intensified its assault on democratic principles, revealing deep vulnerabilities in its legal system. PETER ČUROŠ (EN) examines the government’s four key strategies to consolidate power and weaken civil society. In addition, MAX STEUER (EN) shows how the Slovakian small jurisdiction’s size, in combination with its relatively isolated doctrinal legal academia, could hamper the development of robust democratic constitutional discourse.
However, as well as regression, there have been positive developments: Poland, once one of the countries with the highest number of strategic lawsuits against public participation (SLAPPs), could now be an example of how to deal with such complaints. DOMINIKA BYCHAWSKA-SINIARSKA and ZUZANNA NOWICKA (EN) looked at what the recipe for success might be.
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It has been over 900 days since Russia launched its so-called ‘three-day crusade’ to capture Kyiv. ALINA CHERVIATSOVA (EN) shows why the way we talk about Russia’s war against Ukraine has far-reaching implications, not only for public perception but also for international policy and accountability.
On 7 August 2024, Thailand’s Constitutional Court ordered the dissolution of the Move Forward Party (MFP), the country’s most popular political party. The dissolution follows a decision in January, when the Constitutional Court ruled that the MFP’s campaign to amend section 112 of the Penal Code (the lèse-majesté law) constituted an attempt to overthrow the democratic regime with the king as head of state, which is considered a fundamental principle of the Thai state. KHEMTHONG TONSAKULRUNGRUANG (EN) argues that the decision is another chapter in a long-standing conflict over the scope of the criminal offense of lèse-majesté, the extent of freedom of expression, and ultimately, the character of the Thai state.
Mexico is about to adopt a constitutional amendment, designed to politically capture the judiciary. The President’s persistent and systematic defamatory attacks on the judiciary have been key to the amendment’s likely adoption. JORGE GAXIOLA LAPPE (EN) argues that Mexico’s case illustrates the increasing significance of institutional defamation as a tool of abusive constitutionalism.
In our digital section this week, GIOVANNI DE GREGORIO and ORESTE POLLICINO (EN) wrote about the Digital Service Act (DSA), which has already been the subject of much discussion on the blog. The DSA increases the accountability of very large online platforms and search engines by introducing an auditing system. The audit process, as defined by the DSA, risks producing counterproductive consequences for the European policy objectives.
Last but not least, this week was also about football. Concerning the football transfer rules, TSJALLE VAN DER BURG (EN) explains how the upcoming CJEU’s ruling in Diarra, based on the AG Opinion, will likely continue the trajectory started in Bosman and further weaken the transfer system. He argues that both decisions neglect competition in consumer markets, which benefits ´ smaller clubs and football fans.
New Blog Symposium
It’s almost a cliché by now that German law studies are somewhat outdated and in need of reform. Student dissatisfaction is high, complaints about stress and pressure to perform are increasing, and the sheer volume of material keeps growing relentlessly. Added to this are societal and environmental crises, which so far have been only marginally reflected in legal education. There are many reasons, then, to think about the critique and reform of law studies—and that’s exactly what a blog symposium of the same name has been doing on our platform since this week.
In the second week of the blog debate ‘Whom it Affects’, authors explore which scenarios of discrimination we could be confronted with if an authoritarian-populist party like the AfD were to come to power, for example in the realms of citizenship law, gender self-determination or inclusion.
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That’s all for this week. Take care and all the best!
Yours,
Verfassungsblog
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