The recent electoral and democratic crisis in Romania was caused by a sequence of political and legal events that occurred between October 2024 and May 2025, rendering the entire presidential election process highly ambiguous and problematic.

Meticulously prepared by the governing coalition of the Social Democrat Party (SDP) and the National Liberal Party (NLP), led by Marcel Ciolacu (Prime Minister) and Nicolae Ciucă (Chair of the Senate) under the auspices of President Klaus Iohannis, the presidential elections in the autumn of 2024 were intended to send one of the two politicians to the Cotroceni Palace and provide new political legitimacy to this bipartisan governmental partnership. Political analysts concurred that both governmental candidates, engaged in a friendly electoral contest, were competing in a repeat of the 2000 presidential final, when Ion Iliescu narrowly defeated Corneliu Vadim Tudor in a nationwide attempt to prevent the installation of an ultra-nationalist, chauvinist, and anti-European president. This time, the challenger was to be George Simion, the vocal president of the far-right Alliance for the Unity of Romanians (AUR) party, who was considered to have a genuine chance of advancing to the second round. For their part, leading members of the SDP have asserted that the party directed votes towards Simion in the first round of the presidential election, hoping that he would secure a place in the final alongside Marcel Ciolacu. The results of the first round are notorious: neither Nicolae Ciucă nor Marcel Ciolacu progressed to the second round, with the latter losing by only a few thousand votes to the pro-European candidate Elena Lasconi. Lasconi was set to face a difficult electoral battle in the second round against an unexpected far-right candidate, Călin Georgescu. Georgescu won the first round with a spectacular percentage of 22.94%, although the polls in October and November measured only 5%. As is well known, the second round did not occur because the CCR decided to annul the ongoing elections and restart the entire electoral process.

On the legal level, the electoral crisis began as early as October with the challenge to Diana Ivanovici Șoșoacă’s candidacy, the controversial president of the far-right S.O.S. Romania Party, followed by a ruling from the Constitutional Court (No. 2 of October 5, 2024), rejecting her candidacy. After the first round (November 24), following a challenge filed by one of the candidates (Cristian Terheș), the CCR decided (November 28) to recount all valid votes cast; the process concluded with the CCR’s validation (December 2) of the first round, without the ballots being fully recounted and without altering the order of the vote. The CCR validated the first round without acknowledging the statement issued by the Supreme Council for National Defence (CSAT) on December 28, which highlighted significant irregularities in the conduct of the electoral process, particularly illegalities in the election campaign on social media. The RCC did not take steps to access the CSAT’s classified documents. However, on December 4, following requests from civil society, including candidate Elena Lasconi, President Johannis approved the declassification of the secret services reports on the conduct of the presidential elections. The reports emphasised a sudden massive digital electoral propaganda in favour of Călin Georgescu, particularly on TikTok, a considerable amount of money paid to TikTok influencers in support of Georgescu, and patterns of social media manipulation that suggested the involvement of a foreign state. Russia was not expressly mentioned, but it was everyone’s main suspect. In light of these public documents, the RCC took up the case on its initiative and, after analysing the information provided, decided to annul the ongoing presidential elections and restart the entire electoral process (Decision No. 32 of December 6, 2024).

The new government, formed following the parliamentary elections on 1 December 2024, set the latest dates for the presidential election as 4 May 2025 (first round) and 18 May (second round). In the months following the cancellation of the polls, former candidate Călin Georgescu unsuccessfully took all possible steps in the national and European courts (ECtHR) to secure a rerun of the second round of the cancelled presidential elections. Meanwhile, the new electoral process proceeded according to the established timetable. A tense moment was the submission and validation of candidacies. Referring directly to the RCC decision of 5 October 2024, the Central Electoral Bureau (CEB) rejected the registration of the candidacies of Călin Georgescu and Diana Șoșoacă. Subsequently, the RCC rejected the appeals against the CEB’s decisions. The two rounds of voting took place on the scheduled dates without significant incidents. The presidential runoff was between the far-right candidate, George Simion, president of AUR, and the independent Nicușor Dan. Against a considerable voter turnout of approximately 65%, the latter defeated the former by almost 900,000 votes. The CEB’s decision on the outcome of the ballot was challenged in the RCC by George Simion on grounds similar to those invoked by the RCC to annul the 2024 presidential elections. The RCC rejected the challenge on 22 May 2025, and the election result was validated. Nicușor Dan became the fifth president of post-communist Romania.

Allegedly, during the 2024 presidential elections, Romanian democracy faced two significant threats: radical-right populism and the manipulation of social media. Both could have subverted the Romanian constitutional liberal democratic order established by the 1991 Constitution. A radical-right populist candidate may have been elected president of Romania, who may have used her/his high position to dismantle constitutional democracy; the manipulative electoral propaganda on social media may have weaponised the freedom of expression against the essentials of liberal democracy. These perils are not particular to the Romanian society. On the contrary, more and more liberal democracies are worrying about the rise of far-right populism, authoritarian illiberalism, and the capacity of social media to distort elections. The Constitutional Court stepped forward and answered the danger with strong judicial measures: it banned the radical-right populists from running for the presidency and annulled the elections manipulated by social media.

This picture is not new. Reacting with legal countermeasures, including the restriction of certain constitutional rights, against internal actors willing to upend democracy by using the tools of the democratic legal order has been practised and discussed since the interwar period within the analytical framework of militant democracy. Furthermore, Romania already possesses constitutional and infra-constitutional regulations that render it a substantial militant democracy. For instance, political parties are obliged to respect the legal order and the principles of democracy (Article 8,2 of the Romanian Constitution, RC); Article 40,2 RC allows the banning of parties and organisations which militate against political pluralism, the principles of a rule of law state or against the sovereignty, integrity or independence of Romania; Article 152 RC prohibits the revision of (among others) political pluralism and human rights. Last but not least, Emergency Ordinance 31/2002 forbids organisations, symbols, and acts associated with fascism, legionarism, racism, xenophobia, and the promotion of the cult of individuals guilty of committing crimes of genocide against humanity and war crimes. Recent approaches to militant democracy have not filled a vacuum in Romanian legislation. On the contrary, they contribute, albeit not without red flags, to a legal foundation that counterbalances Romania’s authoritarian past and the turbulent transition to post-communism. In addition to identifying new threats to Romanian democracy, they are critically visible and have triggered strong reactions of critique within Romanian society. In the following, I shall approach the new enemies of Romanian militant democracy distinctly: in the first instance, the RCC targeted radical-right populists (Part I); in the second, social media (Part II).

The history of democracy disruption proves that ‘none of those breakdowns was predetermined: they could have been avoided if ‘right’ decisions had been taken and some crucial mistakes had been avoided’ (Linz and Stepan 1978; Schupmann, 2025). Denying individuals access to public offices is one of Karl Loewenstein’s ‘classical’ tools of militant democracy (Loewenstein, 1937). However, like many others, this tool is the subject of the same dilemma: protecting democracy against the perils from within without damaging the democratic framework itself. The RCC cornered radical-right populism as a consistent danger to Romanian liberal democracy. Nevertheless, using ad-hoc (unregulated) legal solutions, as the states often did in the interwar period (Capoccia, 2005), is not favourable to either the actor of militant democracy (in this case, the RCC) or to the solution itself. The RCC has a rich record of contested rulings, and its ultra vires approach did nothing but increase the suspicions of political partisanship. Ideally, it should have managed its militantism impeccably, but unfortunately, it failed to do so.

The RCC addressed the Șoșoacă case by undertaking a complex taxonomic effort far beyond Romanian constitutional and legal provisions. It divided the conditions of eligibility into formal and substantial. The latter were split into ‘special’, including the conditions currently enshrined in legislation, and ‘general’, including the loyalty to the Constitution and its axiology, as they are mainly enshrined in Article 1. Moreover, these values and principles acquired an ontological function after being essentialised to represent the core Romanian national identity and the constitutional identity of Romanian society and state. Suddenly, at stake were issues of paramount gravity. Speaking and acting against the Romanian national and constitutional identity becomes disqualifying for every Romanian politician eager to fill the vacant presidency. Nevertheless, bottling militant democracy in the identitarian receptacle looks like fighting fire with a Molotov cocktail. The RCC raised the stakes considerably, which is why one might have expected a careful assessment of both threats and countermeasures.

From my perspective, the decision to ban Mrs. Șoșoacă from running for the presidential office was not inherently unjustified in the logic of militant democracy, and the RCC had the constitutional authority to make such a ruling (although one may object that the RCC overstepped the power to interpret the boundaries of its competence). According to Article 142,1 RC, the RCC guarantees the Constitution’s supremacy, and its ultra vires approach may have a rationale. Actually, the supporters of militant democracy consider the (constitutional) courts the most qualified ‘firefighters’ to fight ‘the fire’ set against democracy. As András Sajó put it, ‘militantly defending the constitution requires national (…) courts to carefully consider the context of attempts to curtail liberal constitutionalism. This would require the reconsideration of the legal problems, such as the violation of the rule of law or human rights, in the context of the stability of the constitutionalist liberal order. Constitutionally sensitive cases would be given priority and, where necessary, interim measures (injunctions) would be deployed to prevent irreversible damage to constitutional democracy. (Sajó, 2019, p. 200) If there is a serious problem with Șoșoacă ruling, it must be found out elsewhere.

The forfeiture of political rights should be exceptional and carefully balanced against the effective threats to democracy posed by an individual, according to recent scholarly efforts to establish a working normative framework for militant democracy. As J.-W. Müller (2019) put it, ‘individual militant democracy’ is welcome, but only as far as a clear intention to undermine democracy justifies it. Above all, the proponents of individual militant democracy do not accept banning individuals from running for public office solely because of their words and ideas (Kirshner, 2014). No matter how contrary their ideas are to the accepted public political (democratic) values, the politicians should be free to speak their minds. As agreed, democracy is capable of self-hygiene, and this kind of discourse could be tempered by the dominant pro-democratic discourse and sanctioned, if necessary, by criminal law (for example, in the case of hate speech and incitement to violence). If this is not possible, the militant democracy is useless. Instead, what individual militant democracy should consider carefully is the politicians’ pattern of behaviour. The political discourse, accompanied by repetitive actions that may ‘plausibly’ endanger the democratic order, may justify the interdiction of running for public office.

Against this backdrop, the public discourse of Mrs. Șoșoacă (which praises Putin’s autocratic regime and blames the European Union and NATO) in and of itself fails to make a strong case for individual militant democracy. The apparent contradiction between Mrs. Șoșoacă’s public speech and the Romanian president’s sermon is irrelevant, as the Romanian Constitution has adequate mechanisms to sanction the President’s disloyalty and failure to uphold the established constitutional order. Regarding Mrs. Șoșoacă’s actions, i.e., attending receptions at the Russian Embassy in Bucharest, celebrating the Russian National Unity Day at the same embassy and meeting the Russian ambassador, harassing some Italian journalists, blocking access to a COVID vaccination centre during the pandemic, and the legislative proposal to annex a part of the Ukrainian state’s territory, it is doubtful they are manifesting the intention to endanger the Romanian democracy in the future. On the one hand, it is unlikely that her behaviour constituted an effective threat to Romanian democracy that justified the exceptional measure of banning her candidacy. On the other hand, this case raises a sensitive issue in militant democracy: where to draw the line between tolerance and intervention. When to intervene against the dangerous actions against democracy of a radical-right populist politician, so as not to be too late? Intervening too soon may seem abusive. Intervening too late may be useless. As Huq correctly put it, ‘historical experience with militant democracy suggests that problems of incentive and timing are best addressed through a prophylactic creation of independent institutions capable of crafting and applying pro-democracy norms entailing restrictions on democratic participation long before an actual problem arises.’ (Huq, 2023, p. 1139)

The main political consequence of banning Șoșoacă from running for the presidency was not merely her absence from the competition in December 2024, but rather the long-term impact of this ruling. The RCC became bound by its case law, leaving it with no option but to ban Șoșoacă once more in March 2025, while also rejecting Călin Georgescu’s candidacy on the same grounds. In Georgescu’s case, the RCC ruling from March 11, 2025, accepted the reasoning of the Central Electoral Bureau, which underscored the anti-democratic conduct of this candidate from the first round of the 2024 presidential elections. However, this approach presents challenges for individual militant democracy. The sole illegal action clearly and directly linked by the RCC ruling of 6 December 2024 to candidate Georgescu was his failure to declare the funds for his campaign. There is no coherent accusation and unmistakable evidence that Georgescu directly orchestrated or was somehow personally involved in manipulating social media. Instead, the secret services mentioned the direct involvement of an external (state) actor.

It remains unanswered why, in the autumn of 2024, only Diana Șoșoacă was banned, while Călin Georgescu was not, despite his notorious populist, neofascist, anti-European, and antidemocratic discourse. But, as Invernizzi Accetti and Zuckerman correctly put it, ” (…) there is an irreducible element of arbitrariness in whichever way the decision is taken as to what constitutes an ‘enemy’ of democracy. The reason this arbitrariness is inherent is that the decision over who to exclude from the possibility of participating in the democratic game is ultimately a decision over the boundaries of the political community itself, which cannot coherently be taken by democratic procedures and therefore cannot be subsumed under any prior norm” (Invernizzi Accetti and Zuckerman, 2018, p. 183). This is also a matter of maximum concern and an invitation to take militant democracy seriously.

The forfeiture of the right to be a candidate for the presidential office has far-reaching consequences. The strategic question is: How dangerous must candidates’ speech and actions be for democracy to justify banning them from running for the presidency? Any anti-extremist/anti-populist militant democracy needs clear boundaries and careful regulation. Authoritarian populism and neo-fascist (legionary) extremism are realities of the Romanian political scene that may seriously endanger the liberal-democratic constitutional order. In the spirit of Loewenstein, one may concede that merely accepting the presence of populist/radical-right candidates in the name of a tolerant full-fledged democracy is inappropriate. However, the RCC has definitely entered a minefield with a blindfold. Merely sanctioning one candidate’s speech against the values enshrined in Articles 1(3), 1(5), and 82(2) of the Romanian Constitution, no matter how important they are to the Romanian national and constitutional identities, opens the door to regrettable abuse. Behaviour (actions) must be considered, but, like in the case of speech, the degree of danger they pose to democracy must be clearly defined by law.

Manuel Guțan is Professor of Legal History and Comparative Law at Lucian Blaga University of Sibiu, Romania. manuel.gutan@ulbsibiu.ro. He is the editor-in-Chief of the Romanian Journal of Comparative Law, a member of the European Society of Comparative Legal History and an Associate Member of the International Academy of Comparative Law

References

Capoccia, G. (2005), Defending Democracy. Reactions to Extremism in Interwar Europe (The Johns Hopkins University Press;

Huq, Aziz Z (2023), Militant Democracy Comes to the Metaverse?, Emory Law Journal, vol. 47, pp. 1105-1142;

Invernizzi Accetti, C. and Zuckerman, I. (2017), What’s Wrong with Militant Democracy?, Political Studies, vol. 65(15), pp. 182-199;

Kirshner, A.S. (2014), A theory of militant democracy: the ethics of combatting political extremism, Yale University Press;

Linz, Juan J., and Alfred Stepan, eds. (1978), The breakdown of democratic regimes. Baltimore: Johns Hopkins University Press;

Loewenstein, K., Militant Democracy and Fundamental Rights II, The American Political Science Review, vol. XXXI(4), pp. 638-658;

Müller, J.-W. (2019), Individual Militant Democracy, in A. Markopoulou and A.S. Kirshner, Militant Democracy and Its Critics, Edinburgh University Press, pp. 13-37;

Sajó, A. (2019), Militant Constitutionalism, in A. Markopoulou and A.S. Kirshner, Militant Democracy and Its Critics (Edinburgh University Press), pp. 187-206;

Schupmann, B.A. (2025), Reviving militant democracy: A Reply to Niesen, Philosophy and Social Criticism, DOI 10.1177/01914537251340425;