The annulment of the Romanian presidential elections in December 2024 presents multiple challenging analytical difficulties. It should be addressed within the same analytical framework as preventing individuals from running for the presidency: militant democracy is inherently both preventive and reactive. There is no militant democracy without an enemy that significantly threatens democracy and must be countered. In this instance, Romanian democracy faced a relatively novel threat to contemporary democracy: social media. However, campaigning for public office using online mass media and social media is not “ breaking news “. It has traditionally been accused of spreading disinformation and voter manipulation.

Social media has been particularly criticized for its ability to use digital algorithms to expose voters to a considerable volume of pre-selected, bubbled information. This is not good news for democracy, and efforts to regulate this virtual environment are becoming increasingly frequent, even at the European Union level (e.g., the European Commission’s 2020 Democracy Action Plan and the 2022 EU Digital Services Act). A seemingly unprecedented instance of online manipulation and disinformation was noticed during the 2024 presidential election campaign, involving a foreign (state) actor. The RCC intervened by annulling the elections and ordering a complete rerun, although neither the Constitution nor the infra-constitutional legislation explicitly granted it this power. Under Article 52, 1 of Law 370/2004, the RCC may annul the presidential elections only if, within three days after the end of voting, a reasoned request for annulment accompanied by evidence is submitted by the institutions specified by law. The RCC shall annul the elections if the voting and the determination of the results took place through fraud of such a nature as to alter the allocation of the mandate or, as the case may be, the order of the candidates who may participate in the second round of voting. In this case, the Court shall order the repetition of the round of voting on the second Sunday following the date of the annulment of the elections.

I have no space here to thoroughly discuss the ultra-active manner in which the RCC has proceeded or its (lack of) constitutional authority to do so. I cannot help but agree that the RCC ruling met, with significant exceptions, the post-factum criteria posited by the Urgent Report issued by the Venice Commission on January 27, 2025, regarding the cancellation of elections by the constitutional courts. As the guardian of the Constitution, the RCC had the constitutional power to step in firmly in the presence of what it perceived as a significant threat to Romanian democracy (Selejan-Gutan, 2024). In the logic of militant democracy, it identified an enemy, i.e., social media, and reacted in defence of Romanian democracy. As Loewenstein put it, the RCC answered fire with fire. The RCC acted ex officio under the exceptional circumstances revealed by the declassified reports of the Romanian secret services. If ignored, this unrestrained digitalized freedom of expression would have undermined the Romanian democracy. The Court decided ultima ratio to annul the presidential elections, relying on evidence it deemed sufficient and relevant, appreciating that the electoral process had been profoundly distorted. The RCC did more than merely check and react to an unlawful electoral process. As the legal breach was systemic, the answer was also systemic. It protected the constitutional axiological core of Romanian liberal democracy, enshrined in Article 1 of the Romanian Constitution (especially the principles of national sovereignty, democracy, and the rule of law), which was essentialized. In this context, one may wonder why the RCC was not tempted to place all this reasoning under the umbrella of constitutional identity, as it did in the case of banning Șoșoacă’s candidacy. This line of reasoning would have given coherence to the RCC militantism.

There is a significant difference between the Șoșoacă ruling and the annulment of the election ruling. In the former case, the RCC was both reactive and normative (preventive): it banned candidacy and defined new boundaries for the right to be elected (at least to the presidency). In the latter case, the RCC was only reactive. It annulled the elections but was silent about regulating freedom of expression on social media.

The RCC ruling may undoubtedly be contested from various angles. Some may mention the lack of rights safeguards required by the Venice Commission (2024), which is indeed a very sensitive issue. In the Romanian election case, one may find prioritizing the urgency of the ruling over due process problematic. However, even Marta Cartabia, the Vice-President of the Venice Commission and one of the experts who wrote the Urgent Report, recently noted that “ [i]n the case of Romania, the Constitutional Court was forced to act swiftly, as the second round of elections was scheduled just two days later “. Indeed, the past teaches us that “any presence of [a peril] strong enough to threaten to take over the system poses an urgent problem to democratic rulers. In such cases, there is no time to plan ahead, the imperative is primum vivere. “ (Capoccia, 2005, p. 4) Nevertheless, considering the inherent perils of militant democracy, the lack of procedural safeguards remains the primary shortcoming of this RCC ruling (see also Iancu, 2025).

Others may contest the decision to annul the elections. Militant democracy would regard the annulment as an exceptional solution necessitated by a significant threat to liberal democracy. Surely, the electoral legislation was violated to some extent; for instance, TikTok did not label Georgescu’s electoral clips as electoral, he failed to declare his electoral funding, and the candidates did not have equal electoral exposure. Still, was the manipulation of TikTok significantly dangerous to Romanian democracy to justify restarting the entire electoral process from the beginning, rather than, for example, resuming the first round with the same candidates? (Perju, 2024). The inherent perils of militant democracy must be tempered by the proportionality of the state’s response.

Some may appreciate the proof that the Romanian secret services provided was insufficient and inconclusive, and the annulment was a severe blow to Romanian democracy. The Romanian approach to militant democracy did not convince US Vice President J.D. Vance and the Economist Intelligence Unit (EIU). The former depicted Romania as a weak democracy, the latter downgraded Romanian democracy as a “hybrid regime “. Others interpreted the absence of further evidence and explanations provided by the Romanian authorities as a complete lack of evidence. Against this backdrop, the exceptional circumstances and the emergency invoked by the RCC were contested. The latter attitude is explained by Romanian civil society’s urgent need to comprehend the profound impact of the RCC’s ruling on Romanian democracy.

However, one should not ignore that a series of foreign secret services and state agencies, as well as independent expert NGOs, have confirmed in the last months the social media manipulation on TikTok and the Russian state cyberattack. For example, VIGINUM, the French Service for surveillance and protection against foreign digital interference and the Italian Republic’s Security Information platform have confirmed the manipulation of social media during the Romanian electoral process of November 2024, expressly mentioning Russia. In a report from March 2025 addressed to the European Commission, TikTok acknowledged the massive campaign in favour of Georgescu using tens of thousands of fake accounts. This is strong evidence to me. The problem is not the (in)existence of proof but its relevance to Romanian militant democracy.

To be honest, it is challenging to fully appreciate the gravity of social media manipulation and its electoral impact. It is not simple to link a manipulative social media campaign to the results of an electoral process. Instead, sociologists and communication experts remain cautious about the potential of social media to directly and decisively influence voters’ choices. This does not imply that social media is harmless. It would be a significant mistake to ignore or underestimate its threats to democracy. Legal scholars, among others, are examining the considerable capacity of digital algorithms to influence and distort the electoral process, especially their epistemic power, and discussing solutions within the framework of militant democracy (Huq, 2023; Netanel, 2023). In the years to come, social media will likely become one of the most significant threats to liberal democracy. The issue is complex. It is not easy to grasp the impact and seriousness of TikTok manipulation before and during the first round, with or without Russian involvement, and it is difficult to determine if the annulment followed by a new electoral process was the best solution to protect Romanian democracy. It appeared to be the best option for the RCC at the pivotal moment of decision, when the vote had already commenced in the Romanian diaspora.

This is why the consequences are far more significant. In the short term, Romanian democracy appears to be safeguarded. Călin Georgescu has adopted a neo-fascist rhetoric, steeped in strong ethnonationalist and xenophobic tones, advocating the principles of authoritarian populism against liberal democracy and parliamentarianism, of national autarky in opposition to EU membership, and promoting a pacified Russia as opposed to an aggressive Western Europe. The annulment of the presidential elections of November-December 2024 has permitted the ban on his candidacy when the electoral process was resumed in March 2025. His follower, George Simion, a far-right extremist with a more moderate discourse, lost the second round to the pro-European Nicușor Dan. Nevertheless, political rights were paramount in the post-communist Romanian political and constitutional cultures. After decades of manipulated parliamentary and presidential elections, trust in the electoral process was essential to Romanian democracy. Banning candidates and annulling elections can undermine it. It is also true that the fragile Romanian democracy must be protected against populism/extremism and manipulative social media. The perpetual temptation of ethnonationalism (Guțan, 2023; Mercescu, 2025), structural authoritarianism (Iancu, 2020), and neo-fascism (Cercel, 2025) in Romanian society underscores the need for Romanian liberal democracy to remain vigilant.

Historical and cultural arguments justify a militant democracy over a mere procedural democracy in Romania (Kirshner, 2019). Paraphrasing J.-W. Müller, militant democracy posits that there is a space beyond criminal law and electoral law where the harm caused by radical or far-right populists and social media requires prevention by excluding certain actors from the political process and restraining freedom of expression (Müller, 2019, p. 31). However, the costs must be correctly balanced against the gains. As in the case of the danger posed by individual politicians, the reaction to threats coming from social media must be attentively and thoroughly regulated, with complete observance of due process. As was correctly observed, the rule of law cannot be only the principle to be defended by militant democracy, but also its primary tool (Berthout, 2025). Otherwise, militant democracy may become a nightmare for its proponents.

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

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Cercel, C. (2025), Emergency brake: law, history, and Romania’s constitutional crisis, Journal of Contemporary Central and Eastern Europe, vol. 33, pp. 263-273;

Gutan, M. (2023), Romanian Constitutional Identity in Historical Context. In: Comparative Constitutionalism in Central Europe. Central European Academic Publishing, Miskolc-Budapest, pp. 109-128;

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