Germany's Federal Constitutional Court will decide Tuesday whether to ban a party whose best days are behind it. Those in favor of banning the National Democratic Party of Germany point to its affinity with neo-Nazis.
This is the second time that authorities have tried to ban the National Democratic Party of Germany (NPD) for its quest to "abolish Germany's free basic order," to use the words submitted by the Bundesrat, the upper house of Germany's parliament, to the Federal Constitutional Court in Karlsruhe in 2013.
The first attempt, 10 years earlier, ended in disaster when federal judges voiced concern that the evidence put forth was too closely linked to the German government.
That evidence had been largely collected by informants placed among the NPD leadership by Germany's domestic intelligence agency, the BfV. Therefore, the Constitutional Court decided not to deal with the question of whether the far-right NPD was in fact an unconstitutional party.
A new approach
Neither the lower house nor the federal government, both of which were on board for the first attempt, were able to garner enough support to join the Bundesrat this time. Doubts about the potential success of the ban were simply too great.
During the course of oral arguments, those - both inside and outside of politics - who doubt the constitutionality of a ban likely felt that their suspicions had been confirmed.
A non-existent threat?
Saxony's state premier, Stanislaw Tillich of the Christian Democrats, described the NPD as "the basis of a right-wing extremist network."
That is a daring thesis - one that stands in stark contrast to assessments made by Germany's intelligence services. The BfV has reported that the NPD is currently in the middle of an ongoing "personnel, strategic and electoral" crisis.
Last September the party was voted out of the state parliament in Mecklenburg-Western Pomerania, the last in which it still held a seat. The party failed to clear the 5 percent hurdle in Saxony back in 2014.
Since then, the condition of the NPD, which was founded in 1964, has deteriorated further.
The losses mean that the NPD will also lose more of the federal funding that parties receive in the form of election expense reimbursements. Less income means that the NPD and its 5,000 members will have less ability to campaign. The party has become a true lightweight on the local level as well. Only 360 of Germany's 230,000 elected officials belong to the NPD.
Meanwhile, the Constitutional Court senate charged with reviewing the case - led by Andreas Vosskuhle, the president of the court - has voiced considerable doubt about how much of a threat the NPD might pose.
Constitution's high hurdles
Those in favor of banning the NPD point to its "affinity" with National Socialism. Judges see things similarly. And the NPD will not likely be acquitted of pursuing anti-constitutional aims.
Yet it can still hope that the case will simply end with a rebuke of sorts. It is quite possible that the trial will end with the NPD being found to be anti-constitutional, but also that it poses no real threat to the state.
The framers of the constitution set the bar for banning political parties rather high with Article 21, which states that a party is "unconstitutional" if its aims "seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany."
In light of the NPD's insignificance, it would not appear to be remotely able to do any such thing. Representatives have been defiant and combative in the days ahead of the verdict.
"A party that isn't doing anything illegal can't be outlawed in a country of laws," Udo Voigt, the NPD's lone member of the European Parliament, wrote on the party's homepage.
New bottles, old wine
Should the NPD be banned, similar parties would fill the breach, among them the Right and the Third Way.
The BfV's 2014 annual report already pointed to both parties as prospective "catchalls for neo-Nazis affected by association bans."
NPD members will no doubt feel directly addressed if their party is outlawed. Besides, the border between political parties and the extreme right have long been fluid. The xenophobic and racist chants of the NPD are also part of the regular repertoire of such groups as PEGIDA (Patriotic Europeans Against the "Islamization" of the West).
And then there is the Alternative for Germany (AfD), which has staked its fortunes to anti-foreigner sentiment. When his party was forced out of its last seat in Mecklenburg-Western Pomerania in the fall, the NPD's top candidate in the state elections, Udo Pastörs (pictured above) wished the AfD "all the best."
The upstarts entered the state parliament with 20.8 percent of the vote. Pastörs added that the NPD had made "important topics socially acceptable."
There are no signs that AfD leadership has any fear of contact with the NPD.