Ming Hsu Chen and Taeku Lee have posted this draft on SSRN (forthcoming UC Irvine Law Review). Here is the abstract:
The current legal framework for protecting voting rights in the United States has been dramatically destabilized by Supreme Court decisions re-interpreting the protections against minority vote dilution and requires rethinking to survive modern challenges. At the same time, the nation has itself undergone dramatic changes in the racial composition of its polity and in the complexity and salience of race as a factor in political life. In this paper, we focus on a relatively unexamined constituent of this complex reality of modern racial diversity that illustrates some of the core features that all minority groups face in continuing VRA challenges: Asian Americans. In the face of apparent political disempowerment, it is curious that Asian Americans have very rarely succeeded in invoking Section 2 of the Voting Rights Act, a legal measure devised specifically to bolster minority political power. Is this because the necessary conditions for a successful political challenge have not yet arisen? Is the problem a structural one implicating problems in institutional design? Or is it some combination of both, indicating the double harm of a permanent political minority without ability to secure legal redress under the VRA?
Social science and legal scholarship suggest that the legal standards used to trigger the special protections of the VRA contain underspecified assumptions about political behavior and oversimplified understandings about racial identity. This paper attempts to mobilize insights about the political behavior of racial minorities in the service of a multi-dimensional approach toward thinking about legal remedies for democratic exclusion. Our core contention is that the problem of democratic exclusion is multi-factorial and requires a multi-pronged approach to redress. Such an approach includes augmenting available data about the political participation of racial minorities, refining empirical measures to reflect racial politics in a complex, multiracial electorate, and revisiting available remedies in light of a problem with both political and legal dimensions.